1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8071 OF 2010
GENERAL MANAGER, ELECTRICAL
RENGALI HYDRO ELECTRIC PROJECT,
ORISSA AND OTHERS ... APPELLANT(S)
VERSUS
SRI GIRIDHARI SAHU AND OTHERS ... RESPONDENT(S)
J U D G M E N T
K.M. JOSEPH, J.
1. This appeal by special leave is directed against
judgment of the High Court of Orissa dismissing the Writ
Application filed under Articles 226 and 227 of the
Constitution of India by the appellant. What was called in
question before the High Court was the Award passed by the
Labour Court, Bhubaneswar.
2
2. By the impugned order, the High Court had dismissed the
Writ Application and confirmed the Award. The award was
passed on an application filed under Section 33A of the
Industrial Disputes Act, 1947 (hereinafter referred to as
‘the Act’, for short) by 90 workers of the appellant, the
respondents herein who shall be referred as the applicants.
3. On 28.10.1992, the High Court, in Writ Petition O.J.C.
No. 2420 of 1989, held that the NMR workers in the Rengali
Hydro Electric Project (RHEP) who had worked continuously
for a period of five years on the date of the judgment, were
entitled for regularization. They were found entitled to
same pay as regular employees. The appellants challenged
the same by a Special Leave Petition which was converted
to Civil Appeal Nos.7342-7343 of 1993.
4. In short, the case of the applicants (who were NMR
workers in the Rengali Unit) before the Labour Court was
that a reference had been made to the Labour Court dated
02.07.1999 for adjudicating disputes between the
appellants-Management and its workmen. Issues were
3
essentially whether NMR workers were entitled to payment
of Hydro Allowance at revised rates. The further issue was,
whether NMR workers of the Rengali Unit of the Orissa Hydro
Power Corporation, who were being paid medical allowance,
were entitled for such allowance at revised rates.
5. The further case of the applicants, who were NMR
workers in the Application under Section 33A of the Act,
was that they had signed certain papers on the basis that
it was necessary for their being regularized but as it
turned out, it was used as if they were Applications for
claiming the benefit of a Voluntary Separation Scheme
(hereinafter referred to as ‘VSS’ for short). They were
prevented from discharging their duties. They came to know
about the deception practiced. This led to the application
under Section 33A of the Act.
6. The Labour Court found that the VSS was thrust upon the
applicants and there was no publicity and allowed the
application and directed reinstatement with 70 per cent
back-wages which was directed to be adjusted towards
payments made to the applicants.
4
7. The High Court noticed that an industrial dispute was
pending, as noticed by us earlier. It took note of the fact
that the Labour Court has proceeded to find that the VSS
had not been published widely for the information of the
NMR workers, and therefore, it would not be accepted that
the NMR workers signed the applications knowing its
contents and consequences. It was found inter alia further
that the Award was passed on appreciating the oral and
documentary evidence produced before the Labour Court.
Noticing what was invoked before the High Court was
Certiorari jurisdiction and that a writ can be issued only
in exercise of the supervisory jurisdiction and finding
that there was no jurisdictional error or any error apparent
on the face of it, the writ petition was accordingly
dismissed.
8. We have heard Mr. Shibashish Misra, learned counsel
appearing on behalf of the appellants and Mr. Jayant
Bhushan, learned senior counsel appearing for the
applicants.
5
THE CONTENTIONS OF THE PARTIES
9. The appellants would submit that on 16.11.1999), the
Government of Orissa, Department of Energy, approved the
proposal of the appellant-Corporation to float the VSS
after concurrence from the Finance Department in respect
of NMRs/Contingent Khalasis. On 15.04.2000, the President
of the Employee Union wrote to the Chairman to fix a date
to discuss about certain issues. One of the issues was about
enhancement of the VRS for NMR employees. On 27.04.2000,
the appellant-Corporation informed the Senior General
Manager that the VSS shall be enforced from 01.05.2000 to
31.05.2000 in Rengali Unit. A Notification, along with the
Scheme, was to be circulated amongst the workers. It is the
appellants case that 260 NMRs/Contingent Khalasis
requested for separation out of 357. The Corporation
accepted the application of 254 NMRs/Contingent Khalasis.
On 25.05.2000, a discussion took place between the
Management and the Union. The decisions were taken
regarding regularisation of maximum number of 43 workmen
6
and also about the number of workmen to be considered under
the VSS. The first applicant applied on 31.05.2000 under
the Scheme. The application of the applicant was accepted
on 08.06.2000. It is appellants case that applicant’s
letter dated 01.06.2000 was never received by the
appellants. On 13.06.2000, in fact, first applicant sought
payment of gratuity under the Scheme. On 17.06.2000, the
Corporation notified extension of the VSS for six days from
14.06.2000 to 24.06.2000. During that phase, 23
NMRs/Contingent Khalasis sought VSS benefits and the
applications of 21 were accepted.
10. On 18.12.2000, an additional affidavit was filed by the
appellant in this Court in Civil Appeal No. 7343 of 1993,
bringing out the decision to introduce the VSS and that as
on 01.05.2000, inter alia, 260 persons had applied for the
Scheme out of which applications of 255 were accepted and
they had taken the benefits under the Scheme. On 10.01.2001,
there was a round of discussion and it was decided that there
would be no more regularisation of NMRs at the Rengali Unit
and VSS will be applied once again ending with 28.02.2001.
7
On 28.01.2001, the VSS was made available for one month from
30.01.2001 to 01.03.2001. Under this phase also 3
NMRs/Contingent Khalasis sought the benefit of the VSS. The
workmen, who applied for VSS, were paid Rs.1,25,000/-
towards ex gratia, Rs.5,500/- towards lumpsum differential
on account of hydro and medical allowances and other amounts
towards terminal benefits life gratuity, un-availed wages,
etc.. A total sum of Rs.4,03,41,675/- was disbursed under
the VSS. It was thereafter that on 29.05.2001, the
application was filed by the 90 workers under Section 33A
of the Act.
11. Learned counsel for the appellants would submit that
it is a clear case where the Labour Court has failed to
appreciate that the applicants before it, 90 in number, had
made applications with full knowledge of the VSS.
Employees, who were working in the NMR establishment, who
had put in five years of continuous service or more in the
Corporation and had three years left before attaining a
particular age as on 01.01.1999, were entitled under the
Scheme.
8
12. He has placed reliance on the applications actually
filed by the applicants. He has referred to the contents
of the applications. He had pointed out that the VSS
contemplated payment of ex gratia lumpsum of Rs.1.25 lakhs
besides other amounts.
13. The purpose of the Scheme was considering the fact that
the employees of the NMR establishment could only be
considered for permanent employment in accordance with the
Scheme which was introduced during May, 1998, and since
these employees had no right to employment without
availability of work and considering that some of them had
put in number of years of service, the VSS was introduced
for seeking separation with commensurate monetary
benefits. The further objective was to rationalize manpower
of the Corporation in the light of the skilled manpower
required and increased productivity. Still further, the
Scheme was intended to reduce redundant manpower and
achieve optimum manpower utilization.
9
14. The Scheme was applicable to employees who had joined
before the date of ban imposed on recruitment. This
submission, appellants made, on the basis of documents
which were brought on record after the arguments had
commenced. The date of ban was 12.04.1993. It was further
pointed out with reference to Exhibit ‘H’ which is produced
before the Labour Court that applications contemplated
witnesses. The witnesses were to be regular or work-charged
employees in RHEP. Their names were to be disclosed. Clause
(08) of Exhibit ‘H’ dated 24.04.2000, read as follows and
was relied upon:
“08.The willing employees will be required to
open a SB Account in any Nationalised
Bank in the locality because the payment
toward ex-gratia and lump sum amount
will be made by way of A/c Payee Cheque.
To facilitate opening of Bank Account,
a sum of Rs.500/- may be paid to the
concerned employee on request by way of
advance which will be adjusted against
his final dues.”
15. He further submitted that on the basis of the
applications filed by all the applicants along with several
others, who had also applied, the appellant had applied the
10
yardstick of eligibility. The workers entitled were given
the benefit under the VSS. The amount due came to be credited
into their bank accounts. Therefore, it is not open to the
applicants to resile from their position as established by
their applications and set up a case as if they have been
defrauded into making such applications. The applicants
were aware of the contents and the consequences. The Labour
Court has acted illegally in arriving at the conclusions
and passing the Award, noticed by us. He also relied on
(2003) 5 SCC 163; (2004) 2 SCC 193; (2006) 9 SCC 177; (2004)
9 SCC 36; (2003) 2 SCC 721; (2016) 9 SCC 375; (2006) 3 SCC
708; (2015) 4 SCC 482; (2003) 1 SCC 250; AIR 1964 SC 477.
16. Having received the benefits under the VSS, it was not
open to the workers to reprobate. The Labour Court has
clearly overlooked the overwhelming evidence in the form
of the applications duly made by the applicants claiming
benefit of the VSS, the factum of payment to the applicants
in terms of the applications into the bank accounts. He
would also further point out that the payments can be vouch
11
saved for by the fact that the procedure has been sanctified
by there being two witnesses to the said procedure as well.
17. Per contra, Shri Jayant Bhushan, learned senior
counsel, would point out that this Court may appreciate that
what is involved are findings of fact rendered by the Labour
Court. The High Court, under its supervisory jurisdiction,
has chosen not to interfere with such findings of fact and
they should not be disturbed by this Court in exercise of
power under Article 136 of the Constitution of India. Next,
he would point out that the applicants, who were only NMR
workers, could not be attributed with the knowledge of the
contents of the Scheme. All the matters have been
appreciated by the Labour Court. He further pointed out that
the following application made by one of the applicants (the
First Applicant). It reads as follows:
“To,
The Director (HRD),
Corporate Office,
Bhubaneswar
Through the Manager,
Maintenance Division RHEP, Rengali.
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Sub: Regarding withdrawal of my VSS
Application.
Sir
The humble applicant Sri Giridhari Sahoo has
been working as NMR Welder in Maintenance
Division since 3.6.1988 on 31.5.2000 upon the
threat and coercion of the Management,
Maintenance, being afraid I was made to sign
the VSS against my wish. I never intended to
take VSS. I was told that unless I sign the
VSS application I will lose (sic) everything
and will be forced to dire striates.
Therefore, I humbly request that my
application dated 31.5.2000 may be returned
to me for which I will remain ever obliged.
Yours faithfully,
Sd/-
Giridhari Sahoo
1.6.2000
xxx xxx xxx xxx”
(Emphasis supplied)
18. He further contended that workers have also,
immediately after the event, moved the Conciliation
Officer. This is sufficient to show that they were initially
not cognizant of the consequences and, at any rate, at the
earliest, they have sought to resile. He also relied on the
13
judgment of this Court in Management of Madurantakam Coop.
Sugar Mills Limited v. S. Viswanathan1.
19. Per contra, the learned counsel for the appellants,
would point out that there was, at any rate, only one
application in the nature of the application which we have
just referred to, namely, that is to say, only one worker
has brought on record an application stating about threat
and coercion of the appellants-Management and that the
workmen never intended to take the VSS. No doubt, the case
of appellants is that the letter of first applicant dated
01.06.2000, was not received. The evidence has been given
by only four workers. The applications have been given by
90 applicants. Therefore, it was not open to the applicants
to lay store by the application referred to above.
THE SCOPE OF CERTIORARI JURISDICTION
20. Since, applicants contend that the findings of fact
by the Labour Court are virtually unassailable in the
Certiorari jurisdiction and the argument has been found
1 (2005) 3 SCC 193
14
appealing and accepted by the High Court, it is necessary
to deal with the same.
21. An erroneous decision in respect of a matter which
falls within the authority of the Tribunal would not entitle
a writ applicant for a writ of certiorari. However, if the
decision relates to anything collateral to the merit, an
erroneous decision upon which, would affect its
jurisdiction, a writ of certiorari would lie. See Parry
& Co. Ltd. vs. Commercial Employees Association AIR 1952
SC 179. The scope of writ of certiorari came in for an
elaborate consideration by this Court in T.C. Basappa v.
T. Nagappa 2 . Therein, this Court, inter alia, held as
follows:
“7. … The second essential feature of a
writ of certiorari is that the control which
is exercised through it over judicial or
quasi-judicial tribunals or bodies is not in
an appellate but supervisory capacity. In
granting a writ of certiorari the superior
court does not exercise the powers of an
appellate tribunal. It does not review or
reweigh the evidence upon which the
determination of the inferior tribunal
2 AIR 1954 SC 440
15
purports to be based. It demolishes the order
which it considers to be without jurisdiction
or palpably erroneous but does not substitute
its own views for those of the inferior
tribunal. The offending order or proceeding
so to say is put out of the way as one which
should not be used to the detriment of any
person [ Vide Per Lord Cairns in Walshall's
Overseers v. London and North Western Railway
Co., (1879) 4 AC 30, 39.].
xxx xxx xxx
9. Certiorari may lie and is generally
granted when a court has acted without or in
excess of its jurisdiction. The want of
jurisdiction may arise from the nature of the
subject-matter of the proceeding or from the
absence of some preliminary proceeding or the
court itself may not be legally constituted
or suffer from certain disability by reason
of extraneous circumstances [Vide Halsbury,
2nd Edn., Vol. IX, p. 880]. When the
jurisdiction of the court depends upon the
existence of some collateral fact, it is well
settled that the court cannot by a wrong
decision of the fact give it jurisdiction
which it would not otherwise possess [ Vide
Banbury v. Fuller, 9 Exch. 111; R v. Income
Tax Special Purposes Commissioners, 21 QBD
313].
10. A tribunal may be competent to enter upon
an enquiry but in making the enquiry it may
act in flagrant disregard of the rules of
procedure or where no particular procedure is
prescribed, it may violate the principles of
natural justice. A writ of certiorari may be
available in such cases. An error in the
decision or determination itself may also be
amenable to a writ of certiorari but it must
16
be a manifest error apparent on the face of
the proceedings, e.g. when it is based on
clear ignorance or disregard of the
provisions of law. …”
(Emphasis supplied)
22. In Hari Vishnu Kamath v. Ahmed Ishaque & Ors.
3, this
Court held:
“21. … On these authorities, the
following propositions may be taken as
established: (1) Certiorari will be issued
for correcting errors of jurisdiction, as
when an inferior Court or Tribunal acts
without jurisdiction or in excess of it, or
fails to exercise it. (2) Certiorari will
also be issued when the court or Tribunal acts
illegally in the exercise of its undoubted
jurisdiction, as when it decides without
giving an opportunity to the parties to be
heard, or violates the principles of natural
justice. (3) The court issuing a writ of
certiorari acts in exercise of a supervisory
and not appellate jurisdiction. One
consequence of this is that the court will not
review findings of fact reached by the
inferior court or tribunal, even if they be
erroneous. This is on the principle that a
court which has jurisdiction over a
subject-matter has jurisdiction to decide
wrong as well as right, and when the
legislature does not choose to confer a right
of appeal against that decision, it would be
defeating its purpose and policy, if a
3 AIR 1955 SC 233
17
superior court were to rehear the case on the
evidence, and substitute its own findings in
certiorari. These propositions are
well-settled and are not in dispute.
xxx xxx xxx
23. It may therefore be taken as settled
that a writ of certiorari could be issued to
correct an error of law. But it is essential
that it should be something more than a mere
error; it must be one which must be manifest
on the face of the record. … The fact is that
what is an error apparent on the face of the
record cannot be defined precisely or
exhaustively, there being an element of
indefiniteness inherent in its very nature,
and it must be left to be determined
judicially on the facts of each case.”
(Emphasis supplied)
23. The question arose in Dharangadhara Chemical Works
Ltd. v. State of Saurashtra and others4. The question was
whether the finding by the Tribunal under the Act about the
party respondents being workmen was liable to be interfered
with. After dealing with various tests relating to
4 AIR 1957 SC 264
18
determining the issue, this Court also made the following
observations:
“19. … It is equally well settled that
the decision of the Trinbunal on a question
of fact which it has jurisdiction to
determine is not liable to be questioned in
proceedings under Article 226 of the
Constitution unless at the least it is shown
to be fully unsupported by evidence.”
(Emphasis supplied)
24. A Constitution Bench of this Court, in Syed Yakoob v.
K.S. Radhakrishnan and another5, has spoken about the scope
of Writ of Certiorari in the following terms:
“7. The question about the limits of the
jurisdiction of High Courts in issuing a writ
of certiorari under Article 226 has been
frequently considered by this Court and the
true legal position in that behalf is no
longer in doubt. A writ of certiorari can be
issued for correcting errors of jurisdiction
committed by inferior courts or tribunals:
these are cases where orders are passed by
inferior courts or tribunals without
jurisdiction, or in excess of it, or as a
result of failure to exercise jurisdiction.
A writ can similarly be issued where in
exercise of jurisdiction conferred on it, the
court or tribunal acts illegally or
improperly, as for instance, it decides a
question without giving an opportunity to be
heard to the party affected by the order, or
5 AIR 1964 SC 477
19
where the procedure adopted in dealing with
the dispute is opposed to principles of
natural justice. There is, however, no doubt
that the jurisdiction to issue a writ of
certiorari is a supervisory jurisdiction and
the court exercising it is not entitled to act
as an appellate court. This limitation
necessarily means that findings of fact
reached by the inferior court or tribunal as
a result of the appreciation of evidence
cannot be reopened or questioned in writ
proceedings. An error of law which is
apparent on the face of the record can be
corrected by a writ, but not an error of fact,
however grave it may appear to be. In regard
to a finding of fact recorded by the tribunal,
a writ of certiorari can be issued if it is
shown that in recording the said finding, the
tribunal had erroneously refused to admit
admissible and material evidence, or had
erroneously admitted inadmissible evidence
which has influenced the impugned finding.
Similarly, if a finding of fact is based on
no evidence, that would be regarded as an
error of law which can be corrected by a writ
of certiorari. In dealing with this category
of cases, however, we must always bear in mind
that a finding of fact recorded by the
tribunal cannot be challenged in proceedings
for a writ of certiorari on the ground that
the relevant and material evidence adduced
before the tribunal was insufficient or
inadequate to sustain the impugned finding.
The adequacy or sufficiency of evidence led
on a point and the inference of fact to be
drawn from the said finding are within the
exclusive jurisdiction of the tribunal, and
the said points cannot be agitated before a
writ court. It is within these limits that the
jurisdiction conferred on the High Courts
20
under Article 226 to issue a writ of
certiorari can be legitimately exercised
(vide Hari Vishnu Kamath v. Ahmad Ishaque
[AIR 1955 SC 233] , Nagendra Nath Bora v.
Commr. of Hills Division and Appeals [AIR
1958 SC 398] and Kaushalya Devi v. Bachittar
Singh [AIR 1960 SC 1168]).”
(Emphasis supplied)
25. We may more importantly also advert to the view
expressed by this Court in a matter which again arose under
the Act in M/s. Perry and Co. Ltd. v. P.C. Pal, Judge of
the Second Industrial Tribunal, Calcutta and others6. It
was a case related to the scope of the jurisdiction of the
Tribunal in the matter of retrenchment under Section 25F.
This is what the Court held inter alia:
“11. The grounds on which interference
by the High Court is available in such writ
petitions have by now been well established.
In Basappa v. Nagappa [(1955) SCR 250] it
was observed that a writ of certiorari is
generally granted when a court has acted
without or in excess of its jurisdiction. It
is available in those cases where a tribunal,
though competent to enter upon an enquiry,
acts in flagrant disregard of the rules of
procedure or violates the principles of
natural justice where no particular
6 AIR 1970 SC 1334
21
procedure is prescribed. But a mere wrong
decision cannot be corrected by a writ of
certiorari as that would be using it as the
cloak of an appeal in disguise but a manifest
error apparent on the face of the proceedings
based on a clear ignorance or disregard of the
provisions of law or absence of or excess of
jurisdiction, when shown, can be so
corrected. In Dharangadhara Chemical Works
Ltd. v. State of Saurashtra [(1957) SCR 152]
this Court once again observed that where the
Tribunal having jurisdiction to decide a
question comes to a finding of fact, such a
finding is not open to question under Article
226 unless it could be shown to be wholly
unwarranted by the evidence. Likewise,
in State of Andhra Pradesh v. S. Sree Ram
Rao [AIR 1963 S.C. 1723] this Court observed
that where the Tribunal has disabled itself
from reaching a fair decision by some
considerations extraneous to the evidence
and the merits of the case or where its
conclusion on the very face of it is so wholly
arbitrary and capricious that no reasonable
person can ever have arrived at that
conclusion interference under Article 226
would be justified. …”
(Emphasis supplied)
26. We may advert to the decision of this Court in Mukand
Ltd. v. Mukand Staff & Officers’ Association7. We may only
advert to the following paragraphs:
7 (2004) 10 SCC 460
22
“47. In support of his contention that
this Court while exercising its power under
Article 136 of the Constitution of India in
an appeal from the judgment of the High Court
rendered in exercise of its powers under
Articles 226 and 227 of the Constitution of
India will exercise the same power which the
High Court could exercise and will not
interfere with the finding of facts recorded
by a Tribunal, learned counsel cited the
judgment in the case of Parry & Co. Ltd. v.
P.C. Pal [AIR 1970 SC 1334 : (1969) 2 SCR 976]
. In the said case, this Court held as under:
(AIR p. 1341, para 13)
“13. Since this is an appeal arising from
a writ petition for certiorari we also
would not interfere with the conclusions
arrived at by the Tribunal except on
grounds on which the High Court could
have done.”
48. In the case of Fuel Injection Ltd.
v. Kamger Sabha [(1978) 1 SCC 156 : 1978 SCC
(L&S) 33] this Court observed as under: (SCC
p. 157, para 3)
“But the present appeals are from a
judgment of the High Court under Article
226 and so the jurisdiction of this Court
in entertaining an appeal by special
leave under Article 136 must ordinarily
be confined to what the High Court could
or would have done under Article 226.”
49. In our view, the material that was
placed before the Tribunal was not considered
or discussed and that there was, as such, no
adjudication by the Tribunal. The whole award
of the Tribunal, in our view, is liable to be
set aside on the ground of non-application of
mind by the Tribunal to the material on
23
record. In the first place, the Tribunal has
no jurisdiction to entertain and decide a
dispute which covered within its fold
“persons who are not workmen”. That the
material on record before the Tribunal as
regards the comparable concerns was
admittedly “sketchy” and incomplete as
observed by the learned Single Judge of the
High Court and that the award based on such
material could not have been sustained.”
(Emphasis supplied)
27. In Durga Das Basu “Commentary on the Constitution of
India” 9th Edition, in regard to the concept of no evidence,
we find the following discussion:
“No evidence’ does not mean only a total
dearth of evidence. It extends to any case
where the evience taken as a whole is not
reasonably capable of supporting the
finding, or where, in other words, no
tribunal could reasonably reach that
conclusion on that evidence. This “no
evidence” principle clearly has something in
common with the principle that perverse or
unreasonable action is aunauthorised and
ultra vires. An order made without “any
evidence” to support it is in truth, made
without order made without “any evidence is
worthless, it is equal to having “no
evidence” jurisdiction.”
(Emphasis supplied)
24
28. In fact, in the decision relied upon by the applicants,
viz., S. Viswanathan (supra), it is, inter alia, held as
follows:
“12. Normally, the Labour Court or the
Industrial Tribunal, as the case may be, is
the final court of facts in these types of
disputes, but if a finding of fact is perverse
or if the same is not based on legal evidence
the High Court exercising a power either
under Article 226 or under Article 227 of the
Constitution can go into the question of fact
decided by the Labour Court or the Tribunal.
But before going into such an exercise it is
necessary that the writ court must record
reasons why it intends reconsidering a
finding of fact. In the absence of any such
defect in the order of the Labour Court the
writ court will not enter into the realm of
factual disputes and finding given
thereon.…”
(Emphasis supplied)
29. On the conspectus of the decisions and material, we
would hold as follows:
The jurisdiction to issue writ of certiorari is
supervisory and not appellate. The Court considering
a writ application of Certiorari will not don the cap
of an Appellate Court. It will not reappreciate
evidence. The Writ of Certiorari is intended to
25
correct jurisdictional excesses. A writ of
prohibition would issue when a Tribunal or authority
has not yet concluded its proceedings. Once a
decision is rendered by a body amenable to Certiorari
jurisdiction, certiorari could be issued when a
jurisdictional error is clearly established. The
jurisdictional error may be from failure to observe
the limits of its jurisdiction. It may arise from
the procedure adopted by the body after validly
assuming jurisdiction. It may act in violation of
principles of natural justice. The body whose
decision which comes under attack may decide a
collateral fact which is also a jurisdictional fact
and assume jurisdiction. Such a finding of fact is
not immune from being interfered with by a Writ of
Certiorari. As far as the finding of fact which is
one within the jurisdiction of the court, it is
ordinarily a matter ‘off bounds’ for the writ court.
This is for the reason that a body which has
jurisdiction to decide the matter has the
26
jurisdiction to decide it correctly or wrongly. It
would become a mere error and that too an error of
fact. However, gross it may amount to, it does not
amount to an error of law. An error of law which
becomes vulnerable to judicial scrutiny by way of
Certiorari must also one which is apparent on the
face of the record. As held by this Court in Hari
Vishnu Kamath (supra), as to what constitutes an
error apparent on the face of the record, is a matter
to be decided by the court on the facts of each case.
A finding of fact which is not supported by any
evidence would be perverse and in fact would
constitute an error of law enabling the writ court
to interfere. It is also to be noticed that if the
overwhelming weight of the evidence does not support
the finding, it would render the decision amendable
to certiorari jurisdiction. This would be the same
as a finding which is wholly unwarranted by the
evidence which is what this Court has laid down [See
M/s. Perry and Co. Ltd (supra)].
27
THE APPLICATION UNDER SECTION 33A OF THE ACT
30. The applicants were NMR workers. They moved the
application before the Labour Court alleging violation of
Section 33(1) of the Act. Section 33 (1) of the Act, reads
as follows:
“33(1) During the pendency of any
conciliation proceeding before a
conciliation officer or a Board or of any
proceeding before 2 an arbitrator or] a
Labour Court or Tribunal or National Tribunal
in respect of an industrial dispute, no
employer shall--
(a) in regard to any matter connected
with the dispute, alter, to the
prejudice of the workmen concerned in
such dispute, the conditions of service
applicable to them immediately before
the commencement of such proceeding; or
(b) for any misconduct connected with
the dispute, discharge or punish,
whether by dismissal or otherwise, any
workmen concerned in such dispute, save
with the express permission in writing
of the authority before which the
proceeding is pending.”
28
31. Section 33A of the Act, reads as follows:
“33A. Special provision for adjudication as
to whether conditions of service, etc.,
changed during pendency of proceeding.-
Where an employer contravenes the provisions
of section 33 during the pendency of
proceedings before a conciliation officer,
Board, an arbitrator, Labour Court, Tribunal
or National Tribunal any employee aggrieved
by such contravention, may make a complaint
in writing, in the prescribed manner,-
(a) to such conciliation officer or
Board, and the conciliation officer or
Board shall take such complaint into
account in mediating in, and promoting
the settlement of, such industrial
dispute; and
(b) to such arbitrator, Labour Court,
Tribunal or National Tribunal and on
receipt of such complaint, the
arbitrator, Labour Court, Tribunal or
National Tribunal, as the case may be,
shall adjudicate upon the complaint as
if it were a dispute referred to or
pending before it, in accordance with
the provisions of this Act and shall
submit his or its award to the
appropriate Government and the
provisions of this Act shall apply
accordingly.”
29
32. We have noticed that there was a proceeding before the
Labour Court on the reference regarding the availability
of certain benefits to the NMR workers. It is during the
pendency of the same that the applicants alleged denial of
employment. They alleged that in essence, they were duped
into submitting applications as if they were intended to
secure the benefit of the VSS whereas they put their
signatures on the blank papers not comprehending such use.
33. In this case, the case of the appellants is that Section
33 of the Act is not attracted as this is a case where the
applicants voluntarily applied for getting benefit of the
VSS. They were given the benefits. Section 33 of the Act
has no application.
34. Learned senior counsel for the applicants, very
fairly, submitted that if it is found that the applications
were made by the applicants voluntarily and they had claimed
the benefits of the VSS, then, Section 33, as such, may not
apply. Therefore, the core issue to be decided is, whether
30
applications were indeed filed by the applicants cognizant
of its contents and aware of its consequences.
THE PLEADING IN THE APPLICATION AND THE LAW
35. It is, inter alia, pleaded as follows:
“6. That the Hon’ble High Court of Orissa in
OJC No.1527/91 have passed an order to
regularize all NMR workers those who have
completed 5 years of service or otherwise
payment equal pay for equal work as their
counter part in regular establishments are
getting in the Rengali Hydro Power Project.”
36. There is reference to the matters, which were pending,
which we have, inter alia, referred to. We must notice the
further pleading in the application filed by the applicants
under Section 33A of the Act:
9. To defraud the workmen for regularization
of their services, appropriate authorities have
obtained their signatures enmass on certain
papers under the pretext of regularization of
workmen and by showing undue influence of
31
regularization of the service of the workmen that
since the projects were temporary and they were
to be regularized in the Corporation in regular
cadre, the old job will come to an end and new job
in Corporation would stand afresh for which the
workmen without understanding the implication of
application on plain faith with authority have
signed such applications. A fraud was practiced
on the workmen and such change amended to change
service without leave of Tribunal, as such
illegal. Change having been not voluntary, being
actuated with fraud, action of the Management is
in violation of Section 33 of the Act and is in
nullity. Opposite parties refused employment
which amounts to retrenchment. This action is in
clear violation of Section 33 of the Act.
(Emphasis supplied)
37. Counter affidavit was filed. There is denial by the
appellants of the above contentions.
32
38. Order VI Rule 4 of The Code of Civil Procedure, 1908
(hereinafter referred to as ‘the CPC’, for short), reads
as follows:
“In all cases in which the party
pleading relies on any
misrepresentation, fraud, breach of
trust, willful default, or undue
influence, and in all other cases in
which particulars may be necessary
beyond such as are exemplified in the
forms aforesaid, particulars (with
dates and items if necessary) shall be
stated in the pleading.”
39. Therefore, in a civil suit, if the plaintiff alleges
fraud, misrepresentation or undue influence, he is obliged
to given particulars. An allegation of fraud is a matter
of a grave nature. So is the allegation of undue influence
and misrepresentation. The intention underlying Order VI
Rule 4 of the CPC is that the opposite party is to be put
on sufficient notice as to the case which he is called upon
to meet. The law loathes, parties to the lis being taken
by surprise resulting in the violation of the basic
principle of justice that a party should be able to
33
effectively meet the case set up against him. What is fraud?
Is it the same as misrepresentation?
40. In The Indian Contract Act, 1872 (hereinafter referred
to as ‘the Contract Act’, for short), definition of “fraud”,
is as follows:
“17. ‘Fraud’ defined.—‘Fraud’ means and
includes any of the following acts committed
by a party to a contract, or with his
connivance, or by his agent, with intent to
deceive another party thereto or his agent,
or to induce him to enter into the contract:—
(1) the suggestion, as a fact, of that which
is not true, by one who does not believe
it to be true;
(2) the active concealment of a fact by one
having knowledge or belief of the fact;
(3) a promise made without any intention of
performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law
specially declares to be fraudulent.
Explanation.—Mere silence as to facts
likely to affect the willingness of a
person to enter into a contract is not
fraud, unless the circumstances of the
case are such that, regard being had to
them, it is the duty of the person
keeping silence to speak2, or unless his
34
silence, is, in itself, equivalent to
speech.
Explanation.-Mere silence as to
facts likely to affect the willingness
of a person to enter into a contract is
not fraud, unless the circumstances of
the case are such that, regard being had
to them, it is the duty of the person
keeping silence to speak, or unless his
silence is, in itself, equivalent to
speech.”
41. “Misrepresentation” is separately defined in Section
18 of the Contract Act, as follows:
“18.“Misrepresentation” defined.—
“Misrepresentation” means and includes—
(1) the positive assertion, in a manner not
warranted by the information of the
person making it, of that which is not
true, though he believes it to be true;
(2) any breach of duty which, without an
intent to deceive, gains an advantage of
the person committing it, or any one
claiming under him, by misleading
another to his prejudice, or to the
prejudice of any one claiming under him;
(3) causing, however innocently, a party to
an agreement, to make a mistake as to the
substance of the thing which is the
subject of the agreement.”
35
42. Section 19 of the Contract Act declares that when
consent to an agreement is caused by coercion, fraud or
misrepresentation, the agreement is voidable at the option
of the person whose consent was so caused. The exception
in Section 19, reads as follows:
“Exception —If such consent was caused
by misrepresentation or by silence,
fraudulent within the meaning of section 17,
the contract, nevertheless, is not voidable,
if the party whose consent was so caused had
the means of discovering the truth with
ordinary diligence.”
43. “Undue influence” is separately defined under Section
16 of the Contract Act, which reads as follows:
“16. ‘Undue influence’ defined.—(1) A
contract is said to be induced by ‘undue
influence’ where the relations subsisting
between the parties are such that one of the
parties is in a position to dominate the will
of the other and uses that position to obtain
an unfair advantage over the other.
(2) In particular and without prejudice to
the generality of the foregoing principle, a
person is deemed to be in a position to
dominate the will of another—
(a) where he holds a real or apparent
authority over the other, or where
36
he stands in a fiduciary relation to
the other; or
(b) where he makes a contract with a
person whose mental capacity is
temporarily or permanently
affected by reason of age, illness,
or mental or bodily distress.
(3) Where a person who is in a position to
dominate the will of another, enters into a
contract with him, and the transaction
appears, on the face of it or on the evidence
adduced, to be unconscionable, the burden of
proving that such contract was not induced by
undue influence shall be upon the person in
a position to dominate the will of the other.
Nothing in the sub-section shall affect
the provisions of section 111 of the Indian
Evidence Act, 1872 (1 of 1872).”
44. A perusal of the definition of the word “fraud”, as
defined in Section 17 of the Contract Act, would reveal that
the concept of fraud is very wide. It includes any
suggestion, as a fact, of that which is not true, by a person
who does or does not believe it to be true. It may be
contrasted with Section 18(1) of the Contract Act which,
inter alia, defines “misrepresentation”. It provides that
it is misrepresentation if a positive assertion is made by
37
a person of that which is not true in a manner which is not
warranted by the information which he has. This is despite
the fact that he may believe it to be true. In other words,
in fraud, the person who makes an untruthful suggestion,
does not himself believe it to be true. He knows it to be
not true, yet he makes a suggestion of the fact as if it
were true. In misrepresentation, on the other hand, the
person making misrepresentation believes it to be true. But
the law declares it to be misrepresentation on the basis
of information which he had and what he believed to be true
was not true. Therefore, the representation made by him
becomes a misrepresentation as it is a statement which is
found to be untrue. Fraud is committed if a person actively
conceals a fact, who either knows about the fact or believes
in the existence of the fact. The concealment must be
active. It is here that mere silence has been explained in
the Exception which would affect the decision of a person
who enters into a contract to be not fraud unless the
circumstances are such that it becomes his duty to speak.
His silence itself may amount to speech. A person may make
38
a promise without having any intention to perform it. It
is fraud. The law further declares that any other act fitted
to deceive, is fraud. So also, any act or omission, which
the law declares to be fraudulent, amounts to fraud. Running
as a golden trend however and as a requirement of law through
the various limbs of Section 17 of the Contract Act, is the
element of deceit. A person who stands accused of fraud be
it in a civil or criminal action, must entertain an
intention to commit deception. Deception can embrace
various forms and it is a matter to be judged on the facts
of each case. It is, apparently, on account of these serious
circumstances that fraud has on a legal relationship or a
purported legal relationship that the particulars and
details of fraud is required if pleaded in a civil suit or
a proceeding to which the CPC applies.
45. We are here not concerned with a civil suit. The
application in question has been filed under Section 33A
of the Act. Section 11 (1) to (3) of the Act, read as follows:
39
“11. Procedure and powers of conciliation
officers, Boards, Courts and
Tribunals.-(1) Subject to any rules that may
be made in this behalf, an arbitrator, a
Board, Court, Labour Court, Tribunal or
National Tribunal shall follow such
procedure as the arbitrator or other
authority concerned may think fit.
(2) A conciliation officer or a member of a
Board, 4 or Court or the presiding officer of
a Labour Court, Tribunal or National Tribunal
may for the purpose of inquiry into any
existing or apprehended industrial dispute,
after giving reasonable notice, enter the
premises occupied by any establishment to
which the dispute relates.
(3) Every Board, Court, Labour Court,
Tribunal and National Tribunal] shall have
the same powers as are vested in a Civil Court
under the Code of Civil Procedure, 1908 (5 of
1908 ), when trying a suit, in respect of the
following matters, namely:-
(a) enforcing the attendance of any
person and examining him on oath;
(b) compelling the production of
documents and material objects;
(c) issuing commissions for the
examination of witnesses;
(d) in respect of such other matters as
may be prescribed; and every
inquiry or investigation by a
Board, Court, 2 Labour Court,
Tribunal or National Tribunal],
shall be deemed to be a judicial
proceeding within the meaning of
40
sections 193 and 228 of the Indian
Penal Code (45 of 1860).”
(Emphasis supplied)
46. An application under Section 33A of the Act is not a
civil suit. The provisions of Order VI Rule 4 of the CPC,
as such, is not applicable to proceedings under the Act.
Does it mean that the law as to pleadings is not to apply
at all to proceedings under the Act or will it be more
correct to say that the law as to pleadings will apply but
without its full vigor. We would think the latter would be
the correct position in law. While the provisions of the
CPC may not apply the salutary principles embodied would
apply. This is for the reason that the purpose of pleading,
be it in a civil suit or other proceeding, is to allow the
opposite party to meet the case of his opponent to ready
the evidence to be adduced and marshal the law in support
of its case.
47. In Management of Hindustan Steel Limited v. Workmen and
others8, the case arose under Section 25-FFF of the Act
8 AIR 1973 SC 878
41
thereof and the notice issued under the provision was
impugned as being conditional. This is what this Court found
in regard to the contention about the vagueness of the plea:
“13. In our view, Shri Setalvad was
fully justified in submitting that the
management had been taken by surprise and
that the Tribunal was in error in holding the
general ground in the written statement to
cover the specific plea of infirmity of the
notice because of its being conditional. The
plea of the statutory defect in the notice
should, in our opinion, have been reasonably
specific and precise so as to enable the
appellant to meet it. The general plea could
not serve the object of putting the appellant
on guard about the precise case to be met at
the trial and tell the management the precise
nature of the plea with respect to the defect
in the notice, to enable them to meet it. …”
48. In Bharat Iron Works v. Bhagubhai Balubhai Patel9 ,
again a case arose under Section 33 of the Act and is,
therefore, close to the facts of the case before us.
Respondent/ employee complained of victimization and
invoked Section 33 of the Act. This Court, apart from
holding that the Tribunal granting or withholding
9 AIR 1976 SC 98
42
permission under Section 33 of the Act does not sit as a
Court of Appeal, administered the following words of
caution in regard to pleading:
“9. A word of caution is necessary.
Victimisation is a serious charge by an
employee against an employer, and,
therefore, it must be properly and adequately
pleaded giving all particulars upon which the
charge is based to enable the employer to
fully meet them. The charge must not be vague
or indefinite being as it is an amalgam of
facts as well as inferences and attitudes.
The fact that there is a union espousing the
cause of the employees in legitimate trade
union activity and an employee is a member or
active office-bearer thereof, is, per se, no
crucial instance. Collective bargaining
being the order of the day in a democratic
social welfare State, legitimate trade union
activity which must shun all kinds of
physical threats, coercion or violence, must
march with a spirit of tolerance,
understanding and grace in dealings on the
part of the employer. Such activity can flow
in healthy channel only on mutual cooperation
between employer and employee and cannot be
considered as irksome by the management in
the best interest of the concern. Dialogues
with representatives of a union help striking
a delicate balance in adjustment and
settlement of various contentious claims and
issues.
10. The onus of establishing a plea of
victimisation will be upon the person
43
pleading it. Since a charge of victimisation
is a serious matter reflecting, to a degree,
upon the subjective attitude of the employer
evidenced by acts and conduct, these have to
be established by safe and sure evidence.
Mere allegations, vague suggestions and
insinuations are not enough. All particulars
of the charge brought out, if believed, must
be weighed by the Tribunal and a conclusion
should be reached on a totality of the
evidence produced.”
49. In regard to a case based on acquiescence, the High
Court of Madras has also spoken of the need for specific
plea [See (1991), Labour and Industrial Cases, Page 40].
50. Applying the principles of law to the facts of our case,
we would think that there is no sufficient pleading in
regard to fraud. The allegation as to undue influence is
totally without any basis in the pleading.
51. The VSS, if availed of by an employee voluntarily,
amounts to a contract. This Court, in Bank of India and
others v. O.P. Swarnakar and others10, was dealing with the
case of voluntary retirement scheme floated by the bank.
44
A question arose as to whether the scheme was an offer or
an invitation to treat. After elaborate consideration of
the scheme, the Court took the view that having regard to
the facts, in particular, the fact that the bank reserved
its right to accept or reject the application, the scheme
was an invitation to treat. The application made by the
employee amounted to an offer and a contract emerged only
if the application was accepted by the bank. It was only
when the offer of the employee was accepted, it became an
enforceable contract, it was held. This aspect assumes
significance in the light of the fact that the concept of
fraud, undue influence and misrepresentation as defined in
the Contract Act, would be apposite in the context of the
Scheme giving rise to an enforceable contract.
THE EVIDENCE BEFORE THE LABOUR COURT
52. Now, the time is ripe to look at the material which has
been produced before the Labour Court by the parties. On
the side of the applicants, 90 in number, 4 witnesses were
10 (2003) 2 SCC 721
45
examined. The first witness is Giridhari Sahu-the First
Applicant. He states, inter alia, as follows:
He is one of the applicants. There are
89 other applications with him praying for
the same relief. He was working in the
Maintenance Division. Others were working in
other Divisions. He was working since
03.06.1988. He was refused employment since
13.06.2000. Reference is made to the order
passed in O.J.C. No. 2420 of 1989 which we
have referred to. Appellants did not comply
with the directions of the High Court. It was
stated that the Civil Appeal is pending in
this Court. A regulation was made regulating
the regularization of the NMRs who had
completed five years of service. After
formation of the Corporation, the appellants
introduced the Scheme. AW1 and other
applicants were given to understand that
their services will be regularized and
signatures taken in the VSS form. There was
no decision in the meeting regarding the VSS
in the Union. Signatures of the witness and
other applicants were taken by the appellants
forcibly giving an impression that their
services will be regularized. They
46
protested. The reference, which we have
adverted to, is pending. The conditions of
service had been changed. In the
cross-examination, AW1 would state that he
has not been issued with any appointment
letter by the time he joined in service. 327
persons, including AW1, were working during
his tenure. He denied that he, along with
other applicants, signed in the Scheme. He
stated it that it is not a fact that he had
given the application in the Scheme out of his
own without any compulsion or force. So also
the other applicants.
AW2 is one Chirtamani Patra. He joined
from 04.05.1987 and till 13.06.2000, he
worked continuously. The appellants gave
them the impression that their services will
be regularized and, at first instance, their
signature was taken on a blank paper and
subsequently in a form. Subsequently, he
could know that the form was meant for VSS.
Prior to taking signatures in the VSS form,
no intimation or no notice was given
regarding the VSS. He had drawn attention to
the authorities regarding taking of his
signatures in the VSS application form. The
47
signatures were obtained at the Divisional
level. In the cross-examination, he, inter
alia, stated that more than 300 persons were
engaged as NMR at that time. He had no
knowledge about the VSS prior to his refusal
of employment. He denied that the VSS was
sufficiently published and he submitted his
application for VSS. He also stated that it
was not a fact that signatures of the
applicants were not taken forcibly or
fraudulently. He admits to have received
Rs.5,500/- towards hydro allowance and
medical allowance as ex gratia.
AW3 is one Kurtartha Sahu. He joined on
02.04.1984. He would state that with the
instigation by the higher authorities, their
signatures on the VSS form were taken
forcibly. In the similar way, signatures of
all the applicants were taken. VSS was not
published in the notice board or circulated
among the workers prior to taking their
signatures. The VSS was not published in any
local newspaper. In the cross-examination,
he, inter alia, states that it is not a fact
that he, along with other applicants, signed
48
in the VSS form knowing the consequences. He
further stands by his case in the chief.
AW4 joined on 06.03.1984. He was refused
employment on 14.06.2000 along with others.
Their signature was taken in an application
and three to four blank papers. They were
given to understand that their services will
be regularized. Subsequently, they came to
know about the application that the
application they signed was a VSS form. He
says in cross-examination that to his
knowledge, the VSS was not published on the
notice board. He further says he does not know
if any settlement was made with any Union or
not by the management. The Executive Engineer
and HRD and others compelled him and others
to sign. He has not intimated the concerned
Chief Engineer. The application, in which his
signature was taken, was dated 31.05.2000.
About 15 days thereafter, he got the amount
in bank draft. About 3-4 days after
31.05.2000, he raised objection and
protested against the VSS. After protest,
they received the money from the management.
(Emphasis supplied)
49
EVIDENCE FOR THE APPELLANTS
ORAL EVIDENCE
53. OPW1, the Management Witness No.1, would state as
follows:
Out of the 336 NMRs, 256 NMRs accepted
the VSS. The Management has neither
terminated nor retrenched the workers. The
applicants voluntarily separated themselves
by accepting the VSS. Exhibit ‘A' is produced
as the Notification dated 27.04.2000
constituting the Recommending Committee.
Exhibit ‘B Series’ were marked as the
applications. Exhibit ‘C Series’ are the
acceptances of the applications. Exhibit ‘D’
is the Order authorizing AGM, HRD Shri A.K.
Mitra to accept the application. Exhibit ‘E
Series’ are the payment sheets showing the
payment of their legal dues and ex gratia in
account payee cheque. Exhibit ‘C Series’ are
marked with objection. It is stated in
Indrawati, the Management implemented the
VSS and 690 persons were given VSS in
December, 1999. Exhibit ‘A/I’ is the
Notification extending the VSS till
24.06.2000. Exhibit ‘A/II’ is the
50
Notification extending the VSS till
01.03.2001. Discussion was made with Rengali
Power Projects Workers Union before
implementing the VSS on 10.04.2000 AND
14/15.04.2000. The President had given the
agenda for discussion vide Exhibit ‘F’
including VRS for NMR employees. Finally,
discussion was held on 20.05.2000 as per
Exhibit ‘G’ (marked with objection). The
Union was aware of the implementation of the
VSS prior to the implementation. The
witnesses have signed in Exhibit ‘E Series’.
Exhibit ‘H’ is the guideline issued by the
Corporate Office. The suggestion that
signatures of the applicants have been taken
forcibly, has been denied. An amount of
Rs.5,500/- paid to the applicants as ex
gratia towards the enhanced medical
allowance and hydro allowance.
In the cross-examination, the witness
would state, inter alia, as follows:
The Executive Engineer is the appointing
authority so far as NMR workers were
concerned. The VSS was introduced in all the
units of the Corporation in the State. The
Scheme was not notified in the Gazette by the
51
Government or by the Corporation. There was
no request from the side of the applicants to
implement the VSS or VRS nor there was any
proposal from the Rengali Head to reduce the
number of NMRs by implementing the VSS. To
reduce extra manpower, the VSS was
introduced. The Scheme was not published in
any newspaper for the general public. Witness
states that he does not know the applicants
personally. He did not say which applicant
was paid how much wages. He cannot say without
referring to the application and acceptance
letter, from which date the applications were
accepted. In Exhibit ‘G’, neither Shri R.C.
Kuntia nor Shri D.N. Padhi has signed
although their names are there. He does not
know the witnesses who had signed in the
applications in B Series. All the applicants
signed in the presence of the Executive
Engineer, in Exhibit B series. Then, he again
says, he cannot say in whose presence the
applicants signed in Exhibit B Series. He
cannot say who has given the application form
to the applicants in Exhibit B Series. He
denies that signatures of the applicants were
obtained forcibly.
52
OPW2-Management Witness No.2, is the
Manager of a Division. He joined as Manager
on 16.04.2002. Prior to this, he was working
as the Deputy Manager with the Corporation.
While he was working as SDO, 63 NMRs were
working under him. To his knowledge, now, 21
NMRs were working under the appellants. Other
42 persons have separated themselves by
obtaining VSS. By the time the VSS was
introduced. The objective of the Scheme was
widely circulated. The applicant took the
application form for VSS after signing on a
sheet of paper.
He states it to be incorrect that
signatures were taken forcibly.
In cross-examination, he states as
follows:
He came to Rengali in the year 1999. He
has no personal acquaintance with the 42
applicants. He cannot say if any high-level
discussion was made or not. The information
was notified on the office board. The VSS
Notification was made in English. All the
NMRs were not conversant with English. The
Notification was not published in Oriya. The
53
condition of VSS was incorporated in the
application form and the applicants and other
NMRs were not given the Scheme for their
information separately. At present, he
cannot say as to from which date applicants
started receiving application forms. He has
not assisted the applicants in filing the
application form. He can identify witnesses
who have signed the application form of the
applicants. Then, he says, he cannot say who
is Sahdev Raut, in what capacity he had
signed. Below the signature of the witnesses,
their designation and date have not been
given. He has no knowledge about the pendency
of the case in the Supreme Court. He has no
knowledge about the withdrawal of the
application by AW1. He says, it is not a fact
that the signatures of the applicants were
taken forcibly giving impression that their
services will be regularized.
(Emphasis supplied)
THE DOCUMENTARY EVIDENCE
54. The documentary evidence, which is produced by the
applicants, is as follows:
54
a.The OER (Transfer of Undertaking, Assets, Liabilities,
Proceedings and Personnel) Scheme Rules, 1996;
b.The Order passed by the High Court in O.J.C. No. 2420
of 1989, which we have already adverted to;
c.The letter written by the first applicant dated
01.06.2000, which we have already extracted;
d.The Gazette Notification dated 01.04.1996 regarding
change over from the Government.
55. As far as documentary evidence of the appellants is
concerned, they are as follows:
Exhibit ‘A’ is the Notification dated
27.04.2000 constituting the Recommending
Committee. It also contains the Scheme itself.
Exhibit ‘A/I’ is the Notification dated 17.06.2000
indicating that the VSS will be enforced for a
period of six days from 19.06.2000 to 24.06.2000.
Exhibit ‘A/II’ is the Notification dated
28.01.2001 indicating that the VSS will be
enforced for a period of one month from 30.01.2001
55
to 01.03.2001. Exhibit ‘B Series’ are the
applications made by the applicants. Exhibit ‘C’
is acceptance of the VSS application which is seen
marked with objection. Exhibit ‘D’ is the order
authorizing the AGM to accept the applications.
Exhibit ‘E Series’ are the payment sheets showing
payment of the legal dues and ex gratia in account
payee cheques. Exhibit ‘F’ is letter dated
15.04.2000 by the President of the Union seeking
discussion, inter alia, about enhanced amount of
VRS by NMR employees. Exhibit ‘G’ purports to be
the Minutes of the Discussion held between the
Management and the Union on 20.05.2000 (marked
with objection). Exhibit ‘H’ is again letter dated
27.04.2000 containing points for facilitating the
smooth implementation of the Scheme. Exhibit ‘J’
purports to be the acknowledgment of VSS of NMR
employees, Sub-Division II. Exhibit ‘K’ purports
to be the Office Order dated 13.06.2000 relieving
the applicants.
56
FINDINGS OF THE LABOUR COURT
56. The Labour Court found that the application under
Section 33A of the Act is maintainable. This is on the basis
that, had the VSS been in the true sense, there would not
have been any illegality. It is found that the applicants
have challenged the Scheme as illegal and the applications
were obtained by misrepresentation. On that basis, it was
found that the application was maintainable. Thereafter,
the Labour Court goes through the evidence and has recorded
the following findings:
“9. I have gone through the evidence of
witnesses examined on either side so also the
documents exhibited. There was no demand from
the side of the complainants nor there was any
proposal from the side of the officials for
introduction of Voluntary Separation Scheme
or Voluntary Retirement Scheme. Similarly
the SDO and the Executive Engineer of OHPC
have never recommended for reducing the staff
strength. Admittedly Voluntary Separation
Scheme was not published widely for the
information of NMRs and therefore it cannot
be exported that the NMRs signed the
Voluntary Separation Scheme applications
knowing its content and consequences. On a
reference to Ext.3 it is clear that A.W.1
though submitted application for Voluntary
Separation Scheme either under pressure or
57
under a wrong notion he has withdrawn the same
on 1.6.2000 but the application of Sri Sahoo
was not returned back and he was given the
Voluntary Separation Scheme. Therefore I am
of the considered view that the Voluntary
Separation Scheme was not the choice of the
complainants but it was thrust upon the
complainants and therefore amounts to
refused of employment to the guise of
Voluntary Separation Scheme.
10. In view of the discussions made
above, the action of the management opposite
parties in implementing the Voluntary
Separation Scheme forcibly or by
misrepresentation is illegal and
unjustified. The complainants are entitled
to be reinstated in service and are deemed to
be continuing in service from the date of the
Voluntary Separation Scheme was implemented.
The management opposite parties have paid
certain amount to the complainants being the
benefits under Voluntary Separation Scheme.
The complainants will be eligible to get 70%
(seventy percent) back wages and the amount
already paid by the management to the
complainants towards the Voluntary
Separation Scheme benefit shall be adjusted.
The Award shall be implemented by the
opposite parties within one month from the
date of its Notification for publication.”
57. The substance of the findings is contained in
paragraph-9 (extracted above). It is found that there was
no demand from the applicants. There was no proposal from
the officials for introduction of the Scheme. The SDO and
58
the Executive Engineer of the Corporation never recommended
for reducing staff strength. Admittedly, the Scheme was not
published widely for the information of NMRs. Reference is
made to the application made by AW1, which we have
extracted. On this finding, the Labour Court finds that the
Scheme was not the choice of the applicants but it was thrust
upon the applicants. This amounted to refusal of employment
in the guise of the Scheme. On this basis, the relief was
granted. The relief consisted of directing reinstatement
in service and the applicants were deemed to be working
continuously in service from the date of the Scheme being
implemented. Noticing that certain amounts had been paid
to the applicants and directing that the applicants would
get 70 per cent of the back-wages, the amounts were directed
to be adjusted.
58. It may be necessary to notice one development which
took place in the High Court. In the High Court, when
application was made under Section 17B of the Act, the
applicants were directed to deposit the amount which they
received. 28 applicants deposited the amount which they
59
received under the Scheme. It is not disputed that the said
amounts are with the appellants.
THE JUDGMENT IN O.J.C. NO. 2420
59. In the first place, we must notice the judgment of the
High Court of Orissa rendered in O.J.C. No. 2420 of 1989.
In the same, the Court, inter alia, held as follows:
“The petitioner represents a large
number of N.M.Rs. who were employed in
Rengali Hydro Electric Project and the like
projects. Presently, they are under the
Energy Department of the Government of
Orissa. The prayer of the petitioner union is
to direct the opposite parties to regularize
the services of the N.M.R. employees and to
pay them emoluments equal to those of regular
employees discharging the same nature of
work.
We need not traverse the legal ground as
the same has been duly taken note of in a
recent decision of this court in Balaram
Sahu-v-State of Orissa, 74(1992) CLT 367 and
following what was stated in that judgment
the facts of the two cases being similar. We
direct regularization of those members of the
union who have served continuously for a
period of five years by today. The opposite
parties shall find out with reference to
Annexure-7 or any other document available to
them as to which of the members of the
petitioner-union have completed five years
60
of continuous service by today. It may be
pointed out here that in Annexure-7, details
have been given about 281 (though the last
serial number is 280 in Annexure-7, Shri Das
states that sl. No. 114 was mentioned twice
by mistake) persons. Learned counsel states
that details of 85 workmen represented by the
petitioner-union who have been transferred
to different divisions could not be made
available to the court. …”
(Emphasis supplied)
60. The court went on, no doubt, to consider the pay to be
given to the NMR workers. The court proceeded to hold “there
was no reason for discriminating the NMR employees from
other regular employed persons”.
THE JUDGMENT IN CIVIL APPEAL NOS.7342-7343 OF 1993
61. The Civil Appeal, which was carried against the same,
was finally decided by this Court in State of Orissa and
others v. Balaram Sahu and others 11 . The judgment was
rendered on 29.10.2002. From the perusal of the said
judgment, we find that this Court did not deem it fit to
11 (2003) 1 SCC 250
61
interfere with the judgment of the High Court as such. This
is what this Court said:
“14. For all the reasons stated above,
the appeals are allowed and the orders
of the High Court are set aside insofar
as the pay equal to that of the regular
employed staff has been ordered to be
given to the NMR/daily-wager/casual
workers, as indicated above, to which
they will not be eligible or entitled,
till they are regularized and taken as
the permanent members of the
establishment. For the period prior to
such permanent status/regularization,
they would be entitled to be paid only
at the rate of the minimum wages
prescribed or notified, if it is more
than what they were being paid as ordered
by this Court in Jasmer Singh
case [(1996) 11 SCC 77 : 1997 SCC (L&S)
210]. There will be no order as to
costs.”
(Emphasis supplied)
62. Thus, the judgment, insofar as it related to the
direction to regularize the members of the writ
petitioners’ union, became final on 29.10.2002.
63. The judgement of the High Court was dated 28.10.1992.
Thus, we proceed on the basis, therefore, that the
applicants, were members of the writ petitioners’ union in
62
O.J.C. No. 2420 of 1989, who became entitled under the
judgment of the High Court which was affirmed by this Court
as regards the direction for regularization provided they
had served continuously for a period of five years as on
28.10.1992, i.e., the date of the judgment of the High
Court.
64. According to the learned counsel for the appellants,
in fact, a Scheme was floated to effectuate regularization
as ordered by the court. It appears to be their case that
the appellants also floated the VSS.
65. Going by the judgment of the High Court in O.J.C.
No.2420 of 1989, those members of the writ petitioners’
union who served continuously for a period of five years
till 28.10.1992 (date of judgment) were entitled to
regularization as the High Court had directed
regularization. They had indeed acquired a legal right.
This was undoubtedly subject to the lis pending in this
Court. A period of five years continuous service prior to
28.10.1992 would mean those employees who were members of
63
the writ petitioners’ union before the High Court in O.J.C.
No. 2420 of 1989, would be employees who were appointed on
or before 27.10.1987. In fact, going by the deposition of
applicants, it would appear that AW1 claimed to be working
since 1988. This means AW1 apparently was not one who was
covered by the direction for regularization by the High
Court as he was working from 03.06.1988. He would complete
five years only by 02.06.1993. Though, in the application,
there is reference to O.J.C. No.1527 of 1991, in his
deposition, he refers only to O.J.C. No.2420 of 1989. No
doubt, as far as AW2 to AW4, going by the dates given, which
we have already indicated, if they had worked continuously
from the dates, they would be covered by the order of the
High Court for regularization. We are considering the VSS
which was introduced during the pendency of the litigation
before this Court. This means that while they had acquired
a right under the direction of the High Court, the sword
of Damocles over-hanged them in the form of the uncertainty
confronting them as the direction in their favour could be
either confirmed or overturned by this Court.
64
66. In other words, the direction in their favour had not
become final. We have stated this only to highlight that
if the VSS was floated and it was found sufficiently
attractive, it would not be unnatural for them or unfair
to them to take advantage of the same. In this regard, the
appellants have projected before us that out of the 281 NMRs
and Contingent Khalasis who opted for the Scheme, the
Corporation accepted the applications for 271 workers. It
is only the 90 applicants, it is pointed out, who have made
a somersault and sought to resile from the applications
which were made by them.
67. The application under section 33A of the Act was filed
after several months from the date of receiving the ex
gratia payment. There is also the case of the appellants
that there was a letter from the President of the Workers’
Union of 15.04.2000, which was before the circulation of
the Scheme, requesting for enhancing the amount for VRS for
the NMR workers. There are Minutes of the discussion held
on 20.05.2000 between the Management and the
representatives of the Union. The Minutes indicate that the
65
issue relating to the VSS, which was taken up for
discussion, was – “(1) Enhanced amount of VSS for the NMR
employees”.
68. It may be true that the Notification dated 27.04.2000
was published in English. So were the further Notifications
dated 17.06.2000 and 28.01.2000.
69. There is no dispute that the applicants have been
favoured with an amount of Rs.1,25,000/- which is the amount
which is contemplated under the Scheme besides other
amounts. These amounts have been paid by cheques into the
accounts of the applicants. The applications which have
been produced before us appear to be witnessed by two
witnesses. This is as per the terms of the Notification
which contemplates that the application must be signed by
two witnesses. So also, in regard to the payments which are
effected, the authorization appears to be supported by the
signatures of two witnesses.
66
70. No doubt, as far as this aspect is concerned, the
applicants do not dispute that they have received the
payments. In fact, they will not be in a position to
establish that they have not received the payments. They
would brush aside the payments on the basis that they were
paid some amounts which they thought they were entitled to
on the basis that they were being regularized. A sum of
Rs.1,25,000/- plus other benefits was paid to all the
applicants. This amount happens to be also the amount which
was contemplated under the VSS.
71. None of the applicants have a case that the signatures
in the applications have not been appended by them. They
do not appear to have a case about the witnesses as such
except as we have noticed in the evidence. It may be true
that one applicant out of the 90 has written a letter
purporting to withdraw. It is noteworthy that other 89
applicants had not made any application seeking to
withdraw. In the application filed by one worker (First
Applicant), which we have extracted, he would state that
he was threatened and coerced and, being afraid, he was made
67
to sign the application for VSS against his wish. He never
intended to take the VSS and he was told that he would be
forced to dire striats. No doubt, his application is dated
01.06.2000, which is the very next date of the making of
his application. It may be remembered that AW1 was not a
person who was entitled even to the benefit of the order
passed by the High Court as he had not completed five years
as on the date of the judgment. There can be no similarity
between a case of threat or coercion on the one hand and
fraud.
72. The manner in which fraud was perpetuated, the exact
nature of the fraud and person or persons by whom the fraud
was perpetuated, are found missing in the pleadings, as
noticed by us. As far as the first applicant is concerned,
the prevarication in his case is palpable and discernible
from the somersault that he carried out in the pleading in
the application in comparison with his case in the letter,
which he wrote seeking to withdraw from the Scheme, on
01.06.2000, wherein the case was built around alleged
threat and coercion. It may be noticed that coercion is
68
another element which is antithetical to free consent and
is separately dealt with under Section 15 of the Contract
Act. He minces no words after employing the expression
“threat, coercion”, when he declared that being afraid, he
was made to sign the VSS against his wish. He was threatened
with being forced into dire straits unless he signs the
application. Conspicuous by its absence, in his letter
dated 01.06.2000, is even the faintest whisper about fraud
of any kind. This is the application dated 01.06.2000. It
must be noted it is on the very next day after he made the
application claiming the VSS on 31.05.2000. The application
under Section 33A of the Act, on the other hand, came to
be filed much later, i.e., on 19.04.2001, after several
months. In the pleading, in paragraph-9 of the application,
as to who defrauded amongst the authorities, is not pleaded.
It must be noted that the persons arrayed in the application
are the General Manager (Electrical); Manager
(Electrical); Maintenance Division; Manager (Electrical),
Protection and Control Division; Director (HRD) of the
Corporation. It is not even mentioned as to who amongst them
69
committed the alleged act of fraud. No doubt, the fraud
could be committed by either the opposite parties or anyone
action at their behest. If so, it should have been pleaded.
There is no such plea forthcoming. The substance of the plea
is that for regularization, which we gather, on a liberal
reading of the application, being one under the Act and
bearing in mind also the need to be not far too strict,
enmass signatures of workers were taken on certain papers
and by showing undue influence. The pleas of fraud and undue
influence are distinct and separate. It will be noticed that
the case of coercion and threat does not make its appearance
in the pleading.
73. Coming to the oral evidence, AW1, as noticed by us,
states that he and other applicants were given to understand
that their services will be regularised and signatures were
taken on the VSS form. He further says that his signatures
and that of the other applicants were taken by appellants
forcibly giving an impression that their services will be
regularised. As has been noticed by us, there is no case
70
of force which is used in paragraph-9 of the application,
which constitutes the sole pleading.
74. Passing in to AW2, he would say that the appellants gave
them an impression that their services would be regularised
and, at the first instance, their signature was taken on
a blank paper and subsequently on a form. Subsequently, he
came to know that it is meant for the Scheme and he drew
attention of the authorities (There is no mention about
before whom he ventilated his objection. No written
document is forthcoming). He would state that the
signatures were obtained at the Divisional Level giving the
same impression. In cross, he says he has no knowledge about
VSS prior to his refusal of employment. It is further stated
that it is not a fact that the signatures of the applicants
were not taken forcibly and fraudulently by the appellants.
This is about all that AW2 has to say. The inconsistency
between “fraudulently” and “forcibly” is self-evident and
“forcibly” is not vaguely pleaded.
71
75. AW 3 would state that with the instigation of the higher
authorities, their signatures in the VSS were taken
forcibly. In the similar way, the signatures of all the
applicants were taken. No doubt, he speaks about the notice
not being published nor it being circulated amongst the
workers. It was not published in any local newspaper. In
cross-examination, he would state that it is not a fact that
he and other applicants were not refused employment
forcibly nor the condition of service changed. On
conspectus of his evidence, his deposit9ion is only to the
effect that the application of AW3 and other applicants were
secured forcibly. This is completely incompatible with the
case of fraud which is pleaded and there is no pleading for
force being used as we have noticed.
76. Coming to the last witness AW4, he would state that
their signature was taken on an application and three to
four blank papers. They were given to understand that their
services would be regularised. But in cross-examination,
he would state that the Executive Engineer and HR have
72
compelled him and others to sign. The complete
prevarication is palpable and does not require any
elucidation. This would qualify as a case where the pleading
does not match up to the requirements of the case. The state
of the evidence, which is adduced, makes matters even worse.
77. A perusal of the documentary evidence, produced by the
applicants, would show that they have nothing to do about
establishing the case set up by the applicants. On the other
hand, the protest letter dated 01.06.2000 sent by the
firstly applicant completely demolishes the case as pleaded
in the application. It is noteworthy that apart from the
first applicant, none of the 89 other applicants have
registered their protest about the VSS. Though there is
mention about a letter sent to the Conciliation Officer,
it is not brought on record.
78. As against this, the appellants have produced a wealth
of documentary evidence before the Labour Court. Exhibits
‘A’ to ‘K’ were produced. They included the applications
which were signed by the applicants and two witnesses; the
73
VSS Scheme itself; the document evidencing the
authorisation of payments of the amounts under the VSS
Scheme; the Charter of Demand before the Management for
discussion-Exhibit ‘F’. The Minutes of the Discussion of
the meeting which was held on 20.05.2000. The Minutes would
indicate that regularisation of 43 NMR workers out of total
of 343 was to be considered in terms of the Scheme for
regularisation of the NMR workers after the VSS/VRS Scheme,
is implemented in respect of 300 workers. This is item no.1.
The next item no.2 dealt with enhanced amount of VSS for
NMR employees. After a detailed discussion, it was mutually
decided that this was not possible.
79. Item nos. 3 and 4 would show that it was decided that
43 NMR employees will be regularised on the basis of skill
and qualification, seniority in terms of regularisation of
NMR workers.
80. Though there was a direction by the High Court to direct
all the employees of the writ petitioners’ union, the
matters stood challenged before this Court in Civil Appeal
and as on date when VSS Scheme was floated and the
74
regularisation scheme also was enforced, this Court had not
yet rendered its judgment. Upholding the direction to
regularise, the decision of this Court was rendered only
in the year 2002.
81. Having regard to the materials, we would think,
therefore, that the applicants have failed to plead and
prove, and on the yardstick of it being a case of no
evidence, the Award became infirm and was liable to be
interfered with. At any rate, the findings, which have been
rendered by the Labour Court, which is to the effect that
it was not the choice of the applicants and was thrust upon
the complainants amounting to refusal of employment, is
completely insupportable both in law and on facts. The
finding that there was no demand from the side of the
complainants for the introduction of the VSS is completely
irrelevant, as, as an employer, it was certainly open to
devise such policy which was in the best interest of the
Corporation. Validity of the Scheme did not depend upon the
Scheme having its origin in a demand by the workmen. The
finding that there was no proposal for the Scheme or
75
recommendation for reducing the staff strength was wholly
irrelevant. It is the factum of the Scheme being propounded,
in fact and implemented elsewhere as well, which should have
been considered by the Labour Court.
82. We noticed that in paragraph-9 of the application after
stating about getting the signatures enmass on certain
papers under the pretext of regularisation and by showing
undue influence of regularisation that since the projects
were temporary and they are to be regularised in the
Corporation in regular cadre, the old job will come to an
end and a new job in the Corporation would start afresh for
which workmen without understanding the implication of the
application, have signed on such application. From the
evidence which consists of the testimony of AW1 to AW4, as
far as this aspect is concerned, there is no evidence at
all. It is true, in the response of the appellants, it has
been pleaded in paragraph-8 that a Scheme has been displayed
on the notice board and the same has been widely circulated
for information of all concerned. However, the witness for
the appellants, in evidence, has deposed that the VSS was
76
not published in any newspaper. It is stated that it is not
published in any newspaper for the information of the
general public. He also does say that it is not notified
in the Gazette either by the Government or by the
Corporation. The second witness for the appellants also
states that implementation was notified on the Office
Notice Board. It was made in English and the NMRs were not
conversant with English. Nothing was published in Oriya.
We have also undoubtedly taken note of the deposition of
AW1 to AW4 which appears to project the case of
non-publication of the Scheme. In this regard, we must
notice the following features:
1.The applicants themselves lay store by the judgment of
the High Court in the earlier Writ Petition O.J.C.
No.2420 of 1989. Therein, the petitioner was the
Rengali Power Projects Workers’ Union.
2.Apparently, the applicants claimed to be members of the
said Union. AW1, in fact, in his deposition, also
refers to the order passed in O.J.C. No. 2420 of 1989
and that the appellants did not comply with the
77
direction of the High Court and appeal is pending in
this Court. Therefore, applicants must be understood
as being members of the Union. They must also be treated
as aware of the pendency of the civil appeal in this
Court.
83. It is pertinent to note, in this regard that there is
evidence (OPW1), to show that before implementation of the
VSS, discussion took place on 10.04.2000 and 15.04.2000.
Most importantly, Exhibit ‘F’ is a letter sent by one Mr.
R.C. Kuntia dated 15.04.2000, written to the
Chairman-cum-Managing Director of the
appellant-Corporation that he stood elected as the
President of the Union. They had some important problems
to be discussed with the Management. He requested for a date
and time to discuss the problems. Under the heading “Agenda
of the Discussion”, Item No.2 was “Enhance the amount of
VRS for the NMR employees”. This document was, in fact,
marked without any objection through OPW1. The discussions
took place on 20.05.2000. Item no.2 was about enhancing
78
amount of VSS for NMR workers. It was decided, after a
detailed discussion that it was not possible. Therefore,
the only finding possible is that the Union to which the
applicants belonged, wanted the VSS amount to be enhanced.
This aspect has not been considered at all by the Labour
Court. It is true that the document was marked as Exhibit
‘G’ with objection. In the cross-examination of the
witness, through whom Exhibit ‘G’ was marked, there is no
suggestion that such a discussion did not take place or the
discussion did not relate to the enhanced payment under the
VSS. But it is true that OPW1 admits that in Exhibit ‘G’,
the two Office Bearers have not signed though their names
are appearing. However, there is no cross-examination about
discussion taking place prior to implementation.
Therefore, this would, at any rate, show that the
applicants, who were members of the Union, were fully aware
of the VSS. There is no case for them that they were misled
or defrauded by their own Union Leaders. A perusal of the
Award would show that apart from stating that Exhibits ‘A’
to ‘K’ were marked on behalf of the appellants and Exhibits
79
‘1’ to ‘4’ were marked on behalf of the applicants, there
is no discussion about these documents at all. Thus, this
is a case where documentary evidence adduced is by
appellants is ignored by the Labour Court.
84. The finding that it cannot be accepted that the NMRs
signed knowing its contents and consequences, amounts to
nothing short of a perverse finding. The pleading and the
evidence, does not support in the least, such a finding.
On the other hand, the weight of evidence should have been
borne in mind by the Labour Court as completely eliminating
the possibility. It is surprising that the Labour Court
should find solace in the letter written by the first
applicant dated 01.06.2000 to find that he submitted the
application either under pressure or under wrong notion.
In fact, the very concept of wrong notion is missing in the
letter dated 01.06.2000(See paragraph 17 for the letter).
The Labour Court appears to be oblivious also to the fact
that there is only one such letter. Even taking it at its
face value, there is no letter written by any of the other
80
89 applicants. The Labour Court also lost sight of the fact
that the applicants were favoured with amounts under the
Scheme. By way of cheque the amounts stood credited in their
accounts. The application is moved only after several
months of receiving the benefits.
85. We are, therefore, of the clear view that no case was
made out before the Labour Court for invoking Section 33A
read with Section 33 of the Act. In the case of Writ of
Certiorari, no doubt, the Court also bears in mind that it
is not axiomatic, or that upon a finding of illegality, a
court is bound to interfere. The court may still exercise
its discretion and decline jurisdiction unless there is
manifest injustice. Bearing in mind this principle also,
we are inclined to think that the appellants have made out
a case of manifest injustice if the Award is allowed to
stand. Large sums were spent by a Public Sector Corporation
in seeking to trim its work force. The workers voluntarily
on our finding, accepting the terms of the Scheme, receiving
the benefits, and thereunder and got separated.
81
Implementing the Scheme would mean reinstatement of the
workers and that too with 70 per cent back-wages, when there
was absolutely no warrant for the same.
86. There is only one aspect which remains. During the
pendency of the Writ Petition filed by the appellants in
the High Court, 28 applicants deposited the amount which
they have received from the appellants so that application
under Section 17B of the Act could be pursued. This amount
must be directed to be returned to the concerned workmen
who had made the deposit and we also feel that the amount
should be returned with interest.
87. Accordingly, the appeal is allowed and the judgment of
the High Court is set aside. The Award passed by the Labour
Court is set aside and the application filed by the
applicants is dismissed. However, the appellants will
return the entire amount deposited with them by the 28
applicants with interest at the rate of 8 per cent per annum
from the date of deposit till the date of payment. The amount
shall be returned back with interest as above to the
82
applicants concerned within a period of two months form the
date of receipt of copy of this judgment.
88. There shall be no order as to costs.
..................J.
(SANJAY KISHAN KAUL)
..................J.
(K.M. JOSEPH)
New Delhi,
September 12, 2019.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8071 OF 2010
GENERAL MANAGER, ELECTRICAL
RENGALI HYDRO ELECTRIC PROJECT,
ORISSA AND OTHERS ... APPELLANT(S)
VERSUS
SRI GIRIDHARI SAHU AND OTHERS ... RESPONDENT(S)
J U D G M E N T
K.M. JOSEPH, J.
1. This appeal by special leave is directed against
judgment of the High Court of Orissa dismissing the Writ
Application filed under Articles 226 and 227 of the
Constitution of India by the appellant. What was called in
question before the High Court was the Award passed by the
Labour Court, Bhubaneswar.
2
2. By the impugned order, the High Court had dismissed the
Writ Application and confirmed the Award. The award was
passed on an application filed under Section 33A of the
Industrial Disputes Act, 1947 (hereinafter referred to as
‘the Act’, for short) by 90 workers of the appellant, the
respondents herein who shall be referred as the applicants.
3. On 28.10.1992, the High Court, in Writ Petition O.J.C.
No. 2420 of 1989, held that the NMR workers in the Rengali
Hydro Electric Project (RHEP) who had worked continuously
for a period of five years on the date of the judgment, were
entitled for regularization. They were found entitled to
same pay as regular employees. The appellants challenged
the same by a Special Leave Petition which was converted
to Civil Appeal Nos.7342-7343 of 1993.
4. In short, the case of the applicants (who were NMR
workers in the Rengali Unit) before the Labour Court was
that a reference had been made to the Labour Court dated
02.07.1999 for adjudicating disputes between the
appellants-Management and its workmen. Issues were
3
essentially whether NMR workers were entitled to payment
of Hydro Allowance at revised rates. The further issue was,
whether NMR workers of the Rengali Unit of the Orissa Hydro
Power Corporation, who were being paid medical allowance,
were entitled for such allowance at revised rates.
5. The further case of the applicants, who were NMR
workers in the Application under Section 33A of the Act,
was that they had signed certain papers on the basis that
it was necessary for their being regularized but as it
turned out, it was used as if they were Applications for
claiming the benefit of a Voluntary Separation Scheme
(hereinafter referred to as ‘VSS’ for short). They were
prevented from discharging their duties. They came to know
about the deception practiced. This led to the application
under Section 33A of the Act.
6. The Labour Court found that the VSS was thrust upon the
applicants and there was no publicity and allowed the
application and directed reinstatement with 70 per cent
back-wages which was directed to be adjusted towards
payments made to the applicants.
4
7. The High Court noticed that an industrial dispute was
pending, as noticed by us earlier. It took note of the fact
that the Labour Court has proceeded to find that the VSS
had not been published widely for the information of the
NMR workers, and therefore, it would not be accepted that
the NMR workers signed the applications knowing its
contents and consequences. It was found inter alia further
that the Award was passed on appreciating the oral and
documentary evidence produced before the Labour Court.
Noticing what was invoked before the High Court was
Certiorari jurisdiction and that a writ can be issued only
in exercise of the supervisory jurisdiction and finding
that there was no jurisdictional error or any error apparent
on the face of it, the writ petition was accordingly
dismissed.
8. We have heard Mr. Shibashish Misra, learned counsel
appearing on behalf of the appellants and Mr. Jayant
Bhushan, learned senior counsel appearing for the
applicants.
5
THE CONTENTIONS OF THE PARTIES
9. The appellants would submit that on 16.11.1999), the
Government of Orissa, Department of Energy, approved the
proposal of the appellant-Corporation to float the VSS
after concurrence from the Finance Department in respect
of NMRs/Contingent Khalasis. On 15.04.2000, the President
of the Employee Union wrote to the Chairman to fix a date
to discuss about certain issues. One of the issues was about
enhancement of the VRS for NMR employees. On 27.04.2000,
the appellant-Corporation informed the Senior General
Manager that the VSS shall be enforced from 01.05.2000 to
31.05.2000 in Rengali Unit. A Notification, along with the
Scheme, was to be circulated amongst the workers. It is the
appellants case that 260 NMRs/Contingent Khalasis
requested for separation out of 357. The Corporation
accepted the application of 254 NMRs/Contingent Khalasis.
On 25.05.2000, a discussion took place between the
Management and the Union. The decisions were taken
regarding regularisation of maximum number of 43 workmen
6
and also about the number of workmen to be considered under
the VSS. The first applicant applied on 31.05.2000 under
the Scheme. The application of the applicant was accepted
on 08.06.2000. It is appellants case that applicant’s
letter dated 01.06.2000 was never received by the
appellants. On 13.06.2000, in fact, first applicant sought
payment of gratuity under the Scheme. On 17.06.2000, the
Corporation notified extension of the VSS for six days from
14.06.2000 to 24.06.2000. During that phase, 23
NMRs/Contingent Khalasis sought VSS benefits and the
applications of 21 were accepted.
10. On 18.12.2000, an additional affidavit was filed by the
appellant in this Court in Civil Appeal No. 7343 of 1993,
bringing out the decision to introduce the VSS and that as
on 01.05.2000, inter alia, 260 persons had applied for the
Scheme out of which applications of 255 were accepted and
they had taken the benefits under the Scheme. On 10.01.2001,
there was a round of discussion and it was decided that there
would be no more regularisation of NMRs at the Rengali Unit
and VSS will be applied once again ending with 28.02.2001.
7
On 28.01.2001, the VSS was made available for one month from
30.01.2001 to 01.03.2001. Under this phase also 3
NMRs/Contingent Khalasis sought the benefit of the VSS. The
workmen, who applied for VSS, were paid Rs.1,25,000/-
towards ex gratia, Rs.5,500/- towards lumpsum differential
on account of hydro and medical allowances and other amounts
towards terminal benefits life gratuity, un-availed wages,
etc.. A total sum of Rs.4,03,41,675/- was disbursed under
the VSS. It was thereafter that on 29.05.2001, the
application was filed by the 90 workers under Section 33A
of the Act.
11. Learned counsel for the appellants would submit that
it is a clear case where the Labour Court has failed to
appreciate that the applicants before it, 90 in number, had
made applications with full knowledge of the VSS.
Employees, who were working in the NMR establishment, who
had put in five years of continuous service or more in the
Corporation and had three years left before attaining a
particular age as on 01.01.1999, were entitled under the
Scheme.
8
12. He has placed reliance on the applications actually
filed by the applicants. He has referred to the contents
of the applications. He had pointed out that the VSS
contemplated payment of ex gratia lumpsum of Rs.1.25 lakhs
besides other amounts.
13. The purpose of the Scheme was considering the fact that
the employees of the NMR establishment could only be
considered for permanent employment in accordance with the
Scheme which was introduced during May, 1998, and since
these employees had no right to employment without
availability of work and considering that some of them had
put in number of years of service, the VSS was introduced
for seeking separation with commensurate monetary
benefits. The further objective was to rationalize manpower
of the Corporation in the light of the skilled manpower
required and increased productivity. Still further, the
Scheme was intended to reduce redundant manpower and
achieve optimum manpower utilization.
9
14. The Scheme was applicable to employees who had joined
before the date of ban imposed on recruitment. This
submission, appellants made, on the basis of documents
which were brought on record after the arguments had
commenced. The date of ban was 12.04.1993. It was further
pointed out with reference to Exhibit ‘H’ which is produced
before the Labour Court that applications contemplated
witnesses. The witnesses were to be regular or work-charged
employees in RHEP. Their names were to be disclosed. Clause
(08) of Exhibit ‘H’ dated 24.04.2000, read as follows and
was relied upon:
“08.The willing employees will be required to
open a SB Account in any Nationalised
Bank in the locality because the payment
toward ex-gratia and lump sum amount
will be made by way of A/c Payee Cheque.
To facilitate opening of Bank Account,
a sum of Rs.500/- may be paid to the
concerned employee on request by way of
advance which will be adjusted against
his final dues.”
15. He further submitted that on the basis of the
applications filed by all the applicants along with several
others, who had also applied, the appellant had applied the
10
yardstick of eligibility. The workers entitled were given
the benefit under the VSS. The amount due came to be credited
into their bank accounts. Therefore, it is not open to the
applicants to resile from their position as established by
their applications and set up a case as if they have been
defrauded into making such applications. The applicants
were aware of the contents and the consequences. The Labour
Court has acted illegally in arriving at the conclusions
and passing the Award, noticed by us. He also relied on
(2003) 5 SCC 163; (2004) 2 SCC 193; (2006) 9 SCC 177; (2004)
9 SCC 36; (2003) 2 SCC 721; (2016) 9 SCC 375; (2006) 3 SCC
708; (2015) 4 SCC 482; (2003) 1 SCC 250; AIR 1964 SC 477.
16. Having received the benefits under the VSS, it was not
open to the workers to reprobate. The Labour Court has
clearly overlooked the overwhelming evidence in the form
of the applications duly made by the applicants claiming
benefit of the VSS, the factum of payment to the applicants
in terms of the applications into the bank accounts. He
would also further point out that the payments can be vouch
11
saved for by the fact that the procedure has been sanctified
by there being two witnesses to the said procedure as well.
17. Per contra, Shri Jayant Bhushan, learned senior
counsel, would point out that this Court may appreciate that
what is involved are findings of fact rendered by the Labour
Court. The High Court, under its supervisory jurisdiction,
has chosen not to interfere with such findings of fact and
they should not be disturbed by this Court in exercise of
power under Article 136 of the Constitution of India. Next,
he would point out that the applicants, who were only NMR
workers, could not be attributed with the knowledge of the
contents of the Scheme. All the matters have been
appreciated by the Labour Court. He further pointed out that
the following application made by one of the applicants (the
First Applicant). It reads as follows:
“To,
The Director (HRD),
Corporate Office,
Bhubaneswar
Through the Manager,
Maintenance Division RHEP, Rengali.
12
Sub: Regarding withdrawal of my VSS
Application.
Sir
The humble applicant Sri Giridhari Sahoo has
been working as NMR Welder in Maintenance
Division since 3.6.1988 on 31.5.2000 upon the
threat and coercion of the Management,
Maintenance, being afraid I was made to sign
the VSS against my wish. I never intended to
take VSS. I was told that unless I sign the
VSS application I will lose (sic) everything
and will be forced to dire striates.
Therefore, I humbly request that my
application dated 31.5.2000 may be returned
to me for which I will remain ever obliged.
Yours faithfully,
Sd/-
Giridhari Sahoo
1.6.2000
xxx xxx xxx xxx”
(Emphasis supplied)
18. He further contended that workers have also,
immediately after the event, moved the Conciliation
Officer. This is sufficient to show that they were initially
not cognizant of the consequences and, at any rate, at the
earliest, they have sought to resile. He also relied on the
13
judgment of this Court in Management of Madurantakam Coop.
Sugar Mills Limited v. S. Viswanathan1.
19. Per contra, the learned counsel for the appellants,
would point out that there was, at any rate, only one
application in the nature of the application which we have
just referred to, namely, that is to say, only one worker
has brought on record an application stating about threat
and coercion of the appellants-Management and that the
workmen never intended to take the VSS. No doubt, the case
of appellants is that the letter of first applicant dated
01.06.2000, was not received. The evidence has been given
by only four workers. The applications have been given by
90 applicants. Therefore, it was not open to the applicants
to lay store by the application referred to above.
THE SCOPE OF CERTIORARI JURISDICTION
20. Since, applicants contend that the findings of fact
by the Labour Court are virtually unassailable in the
Certiorari jurisdiction and the argument has been found
1 (2005) 3 SCC 193
14
appealing and accepted by the High Court, it is necessary
to deal with the same.
21. An erroneous decision in respect of a matter which
falls within the authority of the Tribunal would not entitle
a writ applicant for a writ of certiorari. However, if the
decision relates to anything collateral to the merit, an
erroneous decision upon which, would affect its
jurisdiction, a writ of certiorari would lie. See Parry
& Co. Ltd. vs. Commercial Employees Association AIR 1952
SC 179. The scope of writ of certiorari came in for an
elaborate consideration by this Court in T.C. Basappa v.
T. Nagappa 2 . Therein, this Court, inter alia, held as
follows:
“7. … The second essential feature of a
writ of certiorari is that the control which
is exercised through it over judicial or
quasi-judicial tribunals or bodies is not in
an appellate but supervisory capacity. In
granting a writ of certiorari the superior
court does not exercise the powers of an
appellate tribunal. It does not review or
reweigh the evidence upon which the
determination of the inferior tribunal
2 AIR 1954 SC 440
15
purports to be based. It demolishes the order
which it considers to be without jurisdiction
or palpably erroneous but does not substitute
its own views for those of the inferior
tribunal. The offending order or proceeding
so to say is put out of the way as one which
should not be used to the detriment of any
person [ Vide Per Lord Cairns in Walshall's
Overseers v. London and North Western Railway
Co., (1879) 4 AC 30, 39.].
xxx xxx xxx
9. Certiorari may lie and is generally
granted when a court has acted without or in
excess of its jurisdiction. The want of
jurisdiction may arise from the nature of the
subject-matter of the proceeding or from the
absence of some preliminary proceeding or the
court itself may not be legally constituted
or suffer from certain disability by reason
of extraneous circumstances [Vide Halsbury,
2nd Edn., Vol. IX, p. 880]. When the
jurisdiction of the court depends upon the
existence of some collateral fact, it is well
settled that the court cannot by a wrong
decision of the fact give it jurisdiction
which it would not otherwise possess [ Vide
Banbury v. Fuller, 9 Exch. 111; R v. Income
Tax Special Purposes Commissioners, 21 QBD
313].
10. A tribunal may be competent to enter upon
an enquiry but in making the enquiry it may
act in flagrant disregard of the rules of
procedure or where no particular procedure is
prescribed, it may violate the principles of
natural justice. A writ of certiorari may be
available in such cases. An error in the
decision or determination itself may also be
amenable to a writ of certiorari but it must
16
be a manifest error apparent on the face of
the proceedings, e.g. when it is based on
clear ignorance or disregard of the
provisions of law. …”
(Emphasis supplied)
22. In Hari Vishnu Kamath v. Ahmed Ishaque & Ors.
3, this
Court held:
“21. … On these authorities, the
following propositions may be taken as
established: (1) Certiorari will be issued
for correcting errors of jurisdiction, as
when an inferior Court or Tribunal acts
without jurisdiction or in excess of it, or
fails to exercise it. (2) Certiorari will
also be issued when the court or Tribunal acts
illegally in the exercise of its undoubted
jurisdiction, as when it decides without
giving an opportunity to the parties to be
heard, or violates the principles of natural
justice. (3) The court issuing a writ of
certiorari acts in exercise of a supervisory
and not appellate jurisdiction. One
consequence of this is that the court will not
review findings of fact reached by the
inferior court or tribunal, even if they be
erroneous. This is on the principle that a
court which has jurisdiction over a
subject-matter has jurisdiction to decide
wrong as well as right, and when the
legislature does not choose to confer a right
of appeal against that decision, it would be
defeating its purpose and policy, if a
3 AIR 1955 SC 233
17
superior court were to rehear the case on the
evidence, and substitute its own findings in
certiorari. These propositions are
well-settled and are not in dispute.
xxx xxx xxx
23. It may therefore be taken as settled
that a writ of certiorari could be issued to
correct an error of law. But it is essential
that it should be something more than a mere
error; it must be one which must be manifest
on the face of the record. … The fact is that
what is an error apparent on the face of the
record cannot be defined precisely or
exhaustively, there being an element of
indefiniteness inherent in its very nature,
and it must be left to be determined
judicially on the facts of each case.”
(Emphasis supplied)
23. The question arose in Dharangadhara Chemical Works
Ltd. v. State of Saurashtra and others4. The question was
whether the finding by the Tribunal under the Act about the
party respondents being workmen was liable to be interfered
with. After dealing with various tests relating to
4 AIR 1957 SC 264
18
determining the issue, this Court also made the following
observations:
“19. … It is equally well settled that
the decision of the Trinbunal on a question
of fact which it has jurisdiction to
determine is not liable to be questioned in
proceedings under Article 226 of the
Constitution unless at the least it is shown
to be fully unsupported by evidence.”
(Emphasis supplied)
24. A Constitution Bench of this Court, in Syed Yakoob v.
K.S. Radhakrishnan and another5, has spoken about the scope
of Writ of Certiorari in the following terms:
“7. The question about the limits of the
jurisdiction of High Courts in issuing a writ
of certiorari under Article 226 has been
frequently considered by this Court and the
true legal position in that behalf is no
longer in doubt. A writ of certiorari can be
issued for correcting errors of jurisdiction
committed by inferior courts or tribunals:
these are cases where orders are passed by
inferior courts or tribunals without
jurisdiction, or in excess of it, or as a
result of failure to exercise jurisdiction.
A writ can similarly be issued where in
exercise of jurisdiction conferred on it, the
court or tribunal acts illegally or
improperly, as for instance, it decides a
question without giving an opportunity to be
heard to the party affected by the order, or
5 AIR 1964 SC 477
19
where the procedure adopted in dealing with
the dispute is opposed to principles of
natural justice. There is, however, no doubt
that the jurisdiction to issue a writ of
certiorari is a supervisory jurisdiction and
the court exercising it is not entitled to act
as an appellate court. This limitation
necessarily means that findings of fact
reached by the inferior court or tribunal as
a result of the appreciation of evidence
cannot be reopened or questioned in writ
proceedings. An error of law which is
apparent on the face of the record can be
corrected by a writ, but not an error of fact,
however grave it may appear to be. In regard
to a finding of fact recorded by the tribunal,
a writ of certiorari can be issued if it is
shown that in recording the said finding, the
tribunal had erroneously refused to admit
admissible and material evidence, or had
erroneously admitted inadmissible evidence
which has influenced the impugned finding.
Similarly, if a finding of fact is based on
no evidence, that would be regarded as an
error of law which can be corrected by a writ
of certiorari. In dealing with this category
of cases, however, we must always bear in mind
that a finding of fact recorded by the
tribunal cannot be challenged in proceedings
for a writ of certiorari on the ground that
the relevant and material evidence adduced
before the tribunal was insufficient or
inadequate to sustain the impugned finding.
The adequacy or sufficiency of evidence led
on a point and the inference of fact to be
drawn from the said finding are within the
exclusive jurisdiction of the tribunal, and
the said points cannot be agitated before a
writ court. It is within these limits that the
jurisdiction conferred on the High Courts
20
under Article 226 to issue a writ of
certiorari can be legitimately exercised
(vide Hari Vishnu Kamath v. Ahmad Ishaque
[AIR 1955 SC 233] , Nagendra Nath Bora v.
Commr. of Hills Division and Appeals [AIR
1958 SC 398] and Kaushalya Devi v. Bachittar
Singh [AIR 1960 SC 1168]).”
(Emphasis supplied)
25. We may more importantly also advert to the view
expressed by this Court in a matter which again arose under
the Act in M/s. Perry and Co. Ltd. v. P.C. Pal, Judge of
the Second Industrial Tribunal, Calcutta and others6. It
was a case related to the scope of the jurisdiction of the
Tribunal in the matter of retrenchment under Section 25F.
This is what the Court held inter alia:
“11. The grounds on which interference
by the High Court is available in such writ
petitions have by now been well established.
In Basappa v. Nagappa [(1955) SCR 250] it
was observed that a writ of certiorari is
generally granted when a court has acted
without or in excess of its jurisdiction. It
is available in those cases where a tribunal,
though competent to enter upon an enquiry,
acts in flagrant disregard of the rules of
procedure or violates the principles of
natural justice where no particular
6 AIR 1970 SC 1334
21
procedure is prescribed. But a mere wrong
decision cannot be corrected by a writ of
certiorari as that would be using it as the
cloak of an appeal in disguise but a manifest
error apparent on the face of the proceedings
based on a clear ignorance or disregard of the
provisions of law or absence of or excess of
jurisdiction, when shown, can be so
corrected. In Dharangadhara Chemical Works
Ltd. v. State of Saurashtra [(1957) SCR 152]
this Court once again observed that where the
Tribunal having jurisdiction to decide a
question comes to a finding of fact, such a
finding is not open to question under Article
226 unless it could be shown to be wholly
unwarranted by the evidence. Likewise,
in State of Andhra Pradesh v. S. Sree Ram
Rao [AIR 1963 S.C. 1723] this Court observed
that where the Tribunal has disabled itself
from reaching a fair decision by some
considerations extraneous to the evidence
and the merits of the case or where its
conclusion on the very face of it is so wholly
arbitrary and capricious that no reasonable
person can ever have arrived at that
conclusion interference under Article 226
would be justified. …”
(Emphasis supplied)
26. We may advert to the decision of this Court in Mukand
Ltd. v. Mukand Staff & Officers’ Association7. We may only
advert to the following paragraphs:
7 (2004) 10 SCC 460
22
“47. In support of his contention that
this Court while exercising its power under
Article 136 of the Constitution of India in
an appeal from the judgment of the High Court
rendered in exercise of its powers under
Articles 226 and 227 of the Constitution of
India will exercise the same power which the
High Court could exercise and will not
interfere with the finding of facts recorded
by a Tribunal, learned counsel cited the
judgment in the case of Parry & Co. Ltd. v.
P.C. Pal [AIR 1970 SC 1334 : (1969) 2 SCR 976]
. In the said case, this Court held as under:
(AIR p. 1341, para 13)
“13. Since this is an appeal arising from
a writ petition for certiorari we also
would not interfere with the conclusions
arrived at by the Tribunal except on
grounds on which the High Court could
have done.”
48. In the case of Fuel Injection Ltd.
v. Kamger Sabha [(1978) 1 SCC 156 : 1978 SCC
(L&S) 33] this Court observed as under: (SCC
p. 157, para 3)
“But the present appeals are from a
judgment of the High Court under Article
226 and so the jurisdiction of this Court
in entertaining an appeal by special
leave under Article 136 must ordinarily
be confined to what the High Court could
or would have done under Article 226.”
49. In our view, the material that was
placed before the Tribunal was not considered
or discussed and that there was, as such, no
adjudication by the Tribunal. The whole award
of the Tribunal, in our view, is liable to be
set aside on the ground of non-application of
mind by the Tribunal to the material on
23
record. In the first place, the Tribunal has
no jurisdiction to entertain and decide a
dispute which covered within its fold
“persons who are not workmen”. That the
material on record before the Tribunal as
regards the comparable concerns was
admittedly “sketchy” and incomplete as
observed by the learned Single Judge of the
High Court and that the award based on such
material could not have been sustained.”
(Emphasis supplied)
27. In Durga Das Basu “Commentary on the Constitution of
India” 9th Edition, in regard to the concept of no evidence,
we find the following discussion:
“No evidence’ does not mean only a total
dearth of evidence. It extends to any case
where the evience taken as a whole is not
reasonably capable of supporting the
finding, or where, in other words, no
tribunal could reasonably reach that
conclusion on that evidence. This “no
evidence” principle clearly has something in
common with the principle that perverse or
unreasonable action is aunauthorised and
ultra vires. An order made without “any
evidence” to support it is in truth, made
without order made without “any evidence is
worthless, it is equal to having “no
evidence” jurisdiction.”
(Emphasis supplied)
24
28. In fact, in the decision relied upon by the applicants,
viz., S. Viswanathan (supra), it is, inter alia, held as
follows:
“12. Normally, the Labour Court or the
Industrial Tribunal, as the case may be, is
the final court of facts in these types of
disputes, but if a finding of fact is perverse
or if the same is not based on legal evidence
the High Court exercising a power either
under Article 226 or under Article 227 of the
Constitution can go into the question of fact
decided by the Labour Court or the Tribunal.
But before going into such an exercise it is
necessary that the writ court must record
reasons why it intends reconsidering a
finding of fact. In the absence of any such
defect in the order of the Labour Court the
writ court will not enter into the realm of
factual disputes and finding given
thereon.…”
(Emphasis supplied)
29. On the conspectus of the decisions and material, we
would hold as follows:
The jurisdiction to issue writ of certiorari is
supervisory and not appellate. The Court considering
a writ application of Certiorari will not don the cap
of an Appellate Court. It will not reappreciate
evidence. The Writ of Certiorari is intended to
25
correct jurisdictional excesses. A writ of
prohibition would issue when a Tribunal or authority
has not yet concluded its proceedings. Once a
decision is rendered by a body amenable to Certiorari
jurisdiction, certiorari could be issued when a
jurisdictional error is clearly established. The
jurisdictional error may be from failure to observe
the limits of its jurisdiction. It may arise from
the procedure adopted by the body after validly
assuming jurisdiction. It may act in violation of
principles of natural justice. The body whose
decision which comes under attack may decide a
collateral fact which is also a jurisdictional fact
and assume jurisdiction. Such a finding of fact is
not immune from being interfered with by a Writ of
Certiorari. As far as the finding of fact which is
one within the jurisdiction of the court, it is
ordinarily a matter ‘off bounds’ for the writ court.
This is for the reason that a body which has
jurisdiction to decide the matter has the
26
jurisdiction to decide it correctly or wrongly. It
would become a mere error and that too an error of
fact. However, gross it may amount to, it does not
amount to an error of law. An error of law which
becomes vulnerable to judicial scrutiny by way of
Certiorari must also one which is apparent on the
face of the record. As held by this Court in Hari
Vishnu Kamath (supra), as to what constitutes an
error apparent on the face of the record, is a matter
to be decided by the court on the facts of each case.
A finding of fact which is not supported by any
evidence would be perverse and in fact would
constitute an error of law enabling the writ court
to interfere. It is also to be noticed that if the
overwhelming weight of the evidence does not support
the finding, it would render the decision amendable
to certiorari jurisdiction. This would be the same
as a finding which is wholly unwarranted by the
evidence which is what this Court has laid down [See
M/s. Perry and Co. Ltd (supra)].
27
THE APPLICATION UNDER SECTION 33A OF THE ACT
30. The applicants were NMR workers. They moved the
application before the Labour Court alleging violation of
Section 33(1) of the Act. Section 33 (1) of the Act, reads
as follows:
“33(1) During the pendency of any
conciliation proceeding before a
conciliation officer or a Board or of any
proceeding before 2 an arbitrator or] a
Labour Court or Tribunal or National Tribunal
in respect of an industrial dispute, no
employer shall--
(a) in regard to any matter connected
with the dispute, alter, to the
prejudice of the workmen concerned in
such dispute, the conditions of service
applicable to them immediately before
the commencement of such proceeding; or
(b) for any misconduct connected with
the dispute, discharge or punish,
whether by dismissal or otherwise, any
workmen concerned in such dispute, save
with the express permission in writing
of the authority before which the
proceeding is pending.”
28
31. Section 33A of the Act, reads as follows:
“33A. Special provision for adjudication as
to whether conditions of service, etc.,
changed during pendency of proceeding.-
Where an employer contravenes the provisions
of section 33 during the pendency of
proceedings before a conciliation officer,
Board, an arbitrator, Labour Court, Tribunal
or National Tribunal any employee aggrieved
by such contravention, may make a complaint
in writing, in the prescribed manner,-
(a) to such conciliation officer or
Board, and the conciliation officer or
Board shall take such complaint into
account in mediating in, and promoting
the settlement of, such industrial
dispute; and
(b) to such arbitrator, Labour Court,
Tribunal or National Tribunal and on
receipt of such complaint, the
arbitrator, Labour Court, Tribunal or
National Tribunal, as the case may be,
shall adjudicate upon the complaint as
if it were a dispute referred to or
pending before it, in accordance with
the provisions of this Act and shall
submit his or its award to the
appropriate Government and the
provisions of this Act shall apply
accordingly.”
29
32. We have noticed that there was a proceeding before the
Labour Court on the reference regarding the availability
of certain benefits to the NMR workers. It is during the
pendency of the same that the applicants alleged denial of
employment. They alleged that in essence, they were duped
into submitting applications as if they were intended to
secure the benefit of the VSS whereas they put their
signatures on the blank papers not comprehending such use.
33. In this case, the case of the appellants is that Section
33 of the Act is not attracted as this is a case where the
applicants voluntarily applied for getting benefit of the
VSS. They were given the benefits. Section 33 of the Act
has no application.
34. Learned senior counsel for the applicants, very
fairly, submitted that if it is found that the applications
were made by the applicants voluntarily and they had claimed
the benefits of the VSS, then, Section 33, as such, may not
apply. Therefore, the core issue to be decided is, whether
30
applications were indeed filed by the applicants cognizant
of its contents and aware of its consequences.
THE PLEADING IN THE APPLICATION AND THE LAW
35. It is, inter alia, pleaded as follows:
“6. That the Hon’ble High Court of Orissa in
OJC No.1527/91 have passed an order to
regularize all NMR workers those who have
completed 5 years of service or otherwise
payment equal pay for equal work as their
counter part in regular establishments are
getting in the Rengali Hydro Power Project.”
36. There is reference to the matters, which were pending,
which we have, inter alia, referred to. We must notice the
further pleading in the application filed by the applicants
under Section 33A of the Act:
9. To defraud the workmen for regularization
of their services, appropriate authorities have
obtained their signatures enmass on certain
papers under the pretext of regularization of
workmen and by showing undue influence of
31
regularization of the service of the workmen that
since the projects were temporary and they were
to be regularized in the Corporation in regular
cadre, the old job will come to an end and new job
in Corporation would stand afresh for which the
workmen without understanding the implication of
application on plain faith with authority have
signed such applications. A fraud was practiced
on the workmen and such change amended to change
service without leave of Tribunal, as such
illegal. Change having been not voluntary, being
actuated with fraud, action of the Management is
in violation of Section 33 of the Act and is in
nullity. Opposite parties refused employment
which amounts to retrenchment. This action is in
clear violation of Section 33 of the Act.
(Emphasis supplied)
37. Counter affidavit was filed. There is denial by the
appellants of the above contentions.
32
38. Order VI Rule 4 of The Code of Civil Procedure, 1908
(hereinafter referred to as ‘the CPC’, for short), reads
as follows:
“In all cases in which the party
pleading relies on any
misrepresentation, fraud, breach of
trust, willful default, or undue
influence, and in all other cases in
which particulars may be necessary
beyond such as are exemplified in the
forms aforesaid, particulars (with
dates and items if necessary) shall be
stated in the pleading.”
39. Therefore, in a civil suit, if the plaintiff alleges
fraud, misrepresentation or undue influence, he is obliged
to given particulars. An allegation of fraud is a matter
of a grave nature. So is the allegation of undue influence
and misrepresentation. The intention underlying Order VI
Rule 4 of the CPC is that the opposite party is to be put
on sufficient notice as to the case which he is called upon
to meet. The law loathes, parties to the lis being taken
by surprise resulting in the violation of the basic
principle of justice that a party should be able to
33
effectively meet the case set up against him. What is fraud?
Is it the same as misrepresentation?
40. In The Indian Contract Act, 1872 (hereinafter referred
to as ‘the Contract Act’, for short), definition of “fraud”,
is as follows:
“17. ‘Fraud’ defined.—‘Fraud’ means and
includes any of the following acts committed
by a party to a contract, or with his
connivance, or by his agent, with intent to
deceive another party thereto or his agent,
or to induce him to enter into the contract:—
(1) the suggestion, as a fact, of that which
is not true, by one who does not believe
it to be true;
(2) the active concealment of a fact by one
having knowledge or belief of the fact;
(3) a promise made without any intention of
performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law
specially declares to be fraudulent.
Explanation.—Mere silence as to facts
likely to affect the willingness of a
person to enter into a contract is not
fraud, unless the circumstances of the
case are such that, regard being had to
them, it is the duty of the person
keeping silence to speak2, or unless his
34
silence, is, in itself, equivalent to
speech.
Explanation.-Mere silence as to
facts likely to affect the willingness
of a person to enter into a contract is
not fraud, unless the circumstances of
the case are such that, regard being had
to them, it is the duty of the person
keeping silence to speak, or unless his
silence is, in itself, equivalent to
speech.”
41. “Misrepresentation” is separately defined in Section
18 of the Contract Act, as follows:
“18.“Misrepresentation” defined.—
“Misrepresentation” means and includes—
(1) the positive assertion, in a manner not
warranted by the information of the
person making it, of that which is not
true, though he believes it to be true;
(2) any breach of duty which, without an
intent to deceive, gains an advantage of
the person committing it, or any one
claiming under him, by misleading
another to his prejudice, or to the
prejudice of any one claiming under him;
(3) causing, however innocently, a party to
an agreement, to make a mistake as to the
substance of the thing which is the
subject of the agreement.”
35
42. Section 19 of the Contract Act declares that when
consent to an agreement is caused by coercion, fraud or
misrepresentation, the agreement is voidable at the option
of the person whose consent was so caused. The exception
in Section 19, reads as follows:
“Exception —If such consent was caused
by misrepresentation or by silence,
fraudulent within the meaning of section 17,
the contract, nevertheless, is not voidable,
if the party whose consent was so caused had
the means of discovering the truth with
ordinary diligence.”
43. “Undue influence” is separately defined under Section
16 of the Contract Act, which reads as follows:
“16. ‘Undue influence’ defined.—(1) A
contract is said to be induced by ‘undue
influence’ where the relations subsisting
between the parties are such that one of the
parties is in a position to dominate the will
of the other and uses that position to obtain
an unfair advantage over the other.
(2) In particular and without prejudice to
the generality of the foregoing principle, a
person is deemed to be in a position to
dominate the will of another—
(a) where he holds a real or apparent
authority over the other, or where
36
he stands in a fiduciary relation to
the other; or
(b) where he makes a contract with a
person whose mental capacity is
temporarily or permanently
affected by reason of age, illness,
or mental or bodily distress.
(3) Where a person who is in a position to
dominate the will of another, enters into a
contract with him, and the transaction
appears, on the face of it or on the evidence
adduced, to be unconscionable, the burden of
proving that such contract was not induced by
undue influence shall be upon the person in
a position to dominate the will of the other.
Nothing in the sub-section shall affect
the provisions of section 111 of the Indian
Evidence Act, 1872 (1 of 1872).”
44. A perusal of the definition of the word “fraud”, as
defined in Section 17 of the Contract Act, would reveal that
the concept of fraud is very wide. It includes any
suggestion, as a fact, of that which is not true, by a person
who does or does not believe it to be true. It may be
contrasted with Section 18(1) of the Contract Act which,
inter alia, defines “misrepresentation”. It provides that
it is misrepresentation if a positive assertion is made by
37
a person of that which is not true in a manner which is not
warranted by the information which he has. This is despite
the fact that he may believe it to be true. In other words,
in fraud, the person who makes an untruthful suggestion,
does not himself believe it to be true. He knows it to be
not true, yet he makes a suggestion of the fact as if it
were true. In misrepresentation, on the other hand, the
person making misrepresentation believes it to be true. But
the law declares it to be misrepresentation on the basis
of information which he had and what he believed to be true
was not true. Therefore, the representation made by him
becomes a misrepresentation as it is a statement which is
found to be untrue. Fraud is committed if a person actively
conceals a fact, who either knows about the fact or believes
in the existence of the fact. The concealment must be
active. It is here that mere silence has been explained in
the Exception which would affect the decision of a person
who enters into a contract to be not fraud unless the
circumstances are such that it becomes his duty to speak.
His silence itself may amount to speech. A person may make
38
a promise without having any intention to perform it. It
is fraud. The law further declares that any other act fitted
to deceive, is fraud. So also, any act or omission, which
the law declares to be fraudulent, amounts to fraud. Running
as a golden trend however and as a requirement of law through
the various limbs of Section 17 of the Contract Act, is the
element of deceit. A person who stands accused of fraud be
it in a civil or criminal action, must entertain an
intention to commit deception. Deception can embrace
various forms and it is a matter to be judged on the facts
of each case. It is, apparently, on account of these serious
circumstances that fraud has on a legal relationship or a
purported legal relationship that the particulars and
details of fraud is required if pleaded in a civil suit or
a proceeding to which the CPC applies.
45. We are here not concerned with a civil suit. The
application in question has been filed under Section 33A
of the Act. Section 11 (1) to (3) of the Act, read as follows:
39
“11. Procedure and powers of conciliation
officers, Boards, Courts and
Tribunals.-(1) Subject to any rules that may
be made in this behalf, an arbitrator, a
Board, Court, Labour Court, Tribunal or
National Tribunal shall follow such
procedure as the arbitrator or other
authority concerned may think fit.
(2) A conciliation officer or a member of a
Board, 4 or Court or the presiding officer of
a Labour Court, Tribunal or National Tribunal
may for the purpose of inquiry into any
existing or apprehended industrial dispute,
after giving reasonable notice, enter the
premises occupied by any establishment to
which the dispute relates.
(3) Every Board, Court, Labour Court,
Tribunal and National Tribunal] shall have
the same powers as are vested in a Civil Court
under the Code of Civil Procedure, 1908 (5 of
1908 ), when trying a suit, in respect of the
following matters, namely:-
(a) enforcing the attendance of any
person and examining him on oath;
(b) compelling the production of
documents and material objects;
(c) issuing commissions for the
examination of witnesses;
(d) in respect of such other matters as
may be prescribed; and every
inquiry or investigation by a
Board, Court, 2 Labour Court,
Tribunal or National Tribunal],
shall be deemed to be a judicial
proceeding within the meaning of
40
sections 193 and 228 of the Indian
Penal Code (45 of 1860).”
(Emphasis supplied)
46. An application under Section 33A of the Act is not a
civil suit. The provisions of Order VI Rule 4 of the CPC,
as such, is not applicable to proceedings under the Act.
Does it mean that the law as to pleadings is not to apply
at all to proceedings under the Act or will it be more
correct to say that the law as to pleadings will apply but
without its full vigor. We would think the latter would be
the correct position in law. While the provisions of the
CPC may not apply the salutary principles embodied would
apply. This is for the reason that the purpose of pleading,
be it in a civil suit or other proceeding, is to allow the
opposite party to meet the case of his opponent to ready
the evidence to be adduced and marshal the law in support
of its case.
47. In Management of Hindustan Steel Limited v. Workmen and
others8, the case arose under Section 25-FFF of the Act
8 AIR 1973 SC 878
41
thereof and the notice issued under the provision was
impugned as being conditional. This is what this Court found
in regard to the contention about the vagueness of the plea:
“13. In our view, Shri Setalvad was
fully justified in submitting that the
management had been taken by surprise and
that the Tribunal was in error in holding the
general ground in the written statement to
cover the specific plea of infirmity of the
notice because of its being conditional. The
plea of the statutory defect in the notice
should, in our opinion, have been reasonably
specific and precise so as to enable the
appellant to meet it. The general plea could
not serve the object of putting the appellant
on guard about the precise case to be met at
the trial and tell the management the precise
nature of the plea with respect to the defect
in the notice, to enable them to meet it. …”
48. In Bharat Iron Works v. Bhagubhai Balubhai Patel9 ,
again a case arose under Section 33 of the Act and is,
therefore, close to the facts of the case before us.
Respondent/ employee complained of victimization and
invoked Section 33 of the Act. This Court, apart from
holding that the Tribunal granting or withholding
9 AIR 1976 SC 98
42
permission under Section 33 of the Act does not sit as a
Court of Appeal, administered the following words of
caution in regard to pleading:
“9. A word of caution is necessary.
Victimisation is a serious charge by an
employee against an employer, and,
therefore, it must be properly and adequately
pleaded giving all particulars upon which the
charge is based to enable the employer to
fully meet them. The charge must not be vague
or indefinite being as it is an amalgam of
facts as well as inferences and attitudes.
The fact that there is a union espousing the
cause of the employees in legitimate trade
union activity and an employee is a member or
active office-bearer thereof, is, per se, no
crucial instance. Collective bargaining
being the order of the day in a democratic
social welfare State, legitimate trade union
activity which must shun all kinds of
physical threats, coercion or violence, must
march with a spirit of tolerance,
understanding and grace in dealings on the
part of the employer. Such activity can flow
in healthy channel only on mutual cooperation
between employer and employee and cannot be
considered as irksome by the management in
the best interest of the concern. Dialogues
with representatives of a union help striking
a delicate balance in adjustment and
settlement of various contentious claims and
issues.
10. The onus of establishing a plea of
victimisation will be upon the person
43
pleading it. Since a charge of victimisation
is a serious matter reflecting, to a degree,
upon the subjective attitude of the employer
evidenced by acts and conduct, these have to
be established by safe and sure evidence.
Mere allegations, vague suggestions and
insinuations are not enough. All particulars
of the charge brought out, if believed, must
be weighed by the Tribunal and a conclusion
should be reached on a totality of the
evidence produced.”
49. In regard to a case based on acquiescence, the High
Court of Madras has also spoken of the need for specific
plea [See (1991), Labour and Industrial Cases, Page 40].
50. Applying the principles of law to the facts of our case,
we would think that there is no sufficient pleading in
regard to fraud. The allegation as to undue influence is
totally without any basis in the pleading.
51. The VSS, if availed of by an employee voluntarily,
amounts to a contract. This Court, in Bank of India and
others v. O.P. Swarnakar and others10, was dealing with the
case of voluntary retirement scheme floated by the bank.
44
A question arose as to whether the scheme was an offer or
an invitation to treat. After elaborate consideration of
the scheme, the Court took the view that having regard to
the facts, in particular, the fact that the bank reserved
its right to accept or reject the application, the scheme
was an invitation to treat. The application made by the
employee amounted to an offer and a contract emerged only
if the application was accepted by the bank. It was only
when the offer of the employee was accepted, it became an
enforceable contract, it was held. This aspect assumes
significance in the light of the fact that the concept of
fraud, undue influence and misrepresentation as defined in
the Contract Act, would be apposite in the context of the
Scheme giving rise to an enforceable contract.
THE EVIDENCE BEFORE THE LABOUR COURT
52. Now, the time is ripe to look at the material which has
been produced before the Labour Court by the parties. On
the side of the applicants, 90 in number, 4 witnesses were
10 (2003) 2 SCC 721
45
examined. The first witness is Giridhari Sahu-the First
Applicant. He states, inter alia, as follows:
He is one of the applicants. There are
89 other applications with him praying for
the same relief. He was working in the
Maintenance Division. Others were working in
other Divisions. He was working since
03.06.1988. He was refused employment since
13.06.2000. Reference is made to the order
passed in O.J.C. No. 2420 of 1989 which we
have referred to. Appellants did not comply
with the directions of the High Court. It was
stated that the Civil Appeal is pending in
this Court. A regulation was made regulating
the regularization of the NMRs who had
completed five years of service. After
formation of the Corporation, the appellants
introduced the Scheme. AW1 and other
applicants were given to understand that
their services will be regularized and
signatures taken in the VSS form. There was
no decision in the meeting regarding the VSS
in the Union. Signatures of the witness and
other applicants were taken by the appellants
forcibly giving an impression that their
services will be regularized. They
46
protested. The reference, which we have
adverted to, is pending. The conditions of
service had been changed. In the
cross-examination, AW1 would state that he
has not been issued with any appointment
letter by the time he joined in service. 327
persons, including AW1, were working during
his tenure. He denied that he, along with
other applicants, signed in the Scheme. He
stated it that it is not a fact that he had
given the application in the Scheme out of his
own without any compulsion or force. So also
the other applicants.
AW2 is one Chirtamani Patra. He joined
from 04.05.1987 and till 13.06.2000, he
worked continuously. The appellants gave
them the impression that their services will
be regularized and, at first instance, their
signature was taken on a blank paper and
subsequently in a form. Subsequently, he
could know that the form was meant for VSS.
Prior to taking signatures in the VSS form,
no intimation or no notice was given
regarding the VSS. He had drawn attention to
the authorities regarding taking of his
signatures in the VSS application form. The
47
signatures were obtained at the Divisional
level. In the cross-examination, he, inter
alia, stated that more than 300 persons were
engaged as NMR at that time. He had no
knowledge about the VSS prior to his refusal
of employment. He denied that the VSS was
sufficiently published and he submitted his
application for VSS. He also stated that it
was not a fact that signatures of the
applicants were not taken forcibly or
fraudulently. He admits to have received
Rs.5,500/- towards hydro allowance and
medical allowance as ex gratia.
AW3 is one Kurtartha Sahu. He joined on
02.04.1984. He would state that with the
instigation by the higher authorities, their
signatures on the VSS form were taken
forcibly. In the similar way, signatures of
all the applicants were taken. VSS was not
published in the notice board or circulated
among the workers prior to taking their
signatures. The VSS was not published in any
local newspaper. In the cross-examination,
he, inter alia, states that it is not a fact
that he, along with other applicants, signed
48
in the VSS form knowing the consequences. He
further stands by his case in the chief.
AW4 joined on 06.03.1984. He was refused
employment on 14.06.2000 along with others.
Their signature was taken in an application
and three to four blank papers. They were
given to understand that their services will
be regularized. Subsequently, they came to
know about the application that the
application they signed was a VSS form. He
says in cross-examination that to his
knowledge, the VSS was not published on the
notice board. He further says he does not know
if any settlement was made with any Union or
not by the management. The Executive Engineer
and HRD and others compelled him and others
to sign. He has not intimated the concerned
Chief Engineer. The application, in which his
signature was taken, was dated 31.05.2000.
About 15 days thereafter, he got the amount
in bank draft. About 3-4 days after
31.05.2000, he raised objection and
protested against the VSS. After protest,
they received the money from the management.
(Emphasis supplied)
49
EVIDENCE FOR THE APPELLANTS
ORAL EVIDENCE
53. OPW1, the Management Witness No.1, would state as
follows:
Out of the 336 NMRs, 256 NMRs accepted
the VSS. The Management has neither
terminated nor retrenched the workers. The
applicants voluntarily separated themselves
by accepting the VSS. Exhibit ‘A' is produced
as the Notification dated 27.04.2000
constituting the Recommending Committee.
Exhibit ‘B Series’ were marked as the
applications. Exhibit ‘C Series’ are the
acceptances of the applications. Exhibit ‘D’
is the Order authorizing AGM, HRD Shri A.K.
Mitra to accept the application. Exhibit ‘E
Series’ are the payment sheets showing the
payment of their legal dues and ex gratia in
account payee cheque. Exhibit ‘C Series’ are
marked with objection. It is stated in
Indrawati, the Management implemented the
VSS and 690 persons were given VSS in
December, 1999. Exhibit ‘A/I’ is the
Notification extending the VSS till
24.06.2000. Exhibit ‘A/II’ is the
50
Notification extending the VSS till
01.03.2001. Discussion was made with Rengali
Power Projects Workers Union before
implementing the VSS on 10.04.2000 AND
14/15.04.2000. The President had given the
agenda for discussion vide Exhibit ‘F’
including VRS for NMR employees. Finally,
discussion was held on 20.05.2000 as per
Exhibit ‘G’ (marked with objection). The
Union was aware of the implementation of the
VSS prior to the implementation. The
witnesses have signed in Exhibit ‘E Series’.
Exhibit ‘H’ is the guideline issued by the
Corporate Office. The suggestion that
signatures of the applicants have been taken
forcibly, has been denied. An amount of
Rs.5,500/- paid to the applicants as ex
gratia towards the enhanced medical
allowance and hydro allowance.
In the cross-examination, the witness
would state, inter alia, as follows:
The Executive Engineer is the appointing
authority so far as NMR workers were
concerned. The VSS was introduced in all the
units of the Corporation in the State. The
Scheme was not notified in the Gazette by the
51
Government or by the Corporation. There was
no request from the side of the applicants to
implement the VSS or VRS nor there was any
proposal from the Rengali Head to reduce the
number of NMRs by implementing the VSS. To
reduce extra manpower, the VSS was
introduced. The Scheme was not published in
any newspaper for the general public. Witness
states that he does not know the applicants
personally. He did not say which applicant
was paid how much wages. He cannot say without
referring to the application and acceptance
letter, from which date the applications were
accepted. In Exhibit ‘G’, neither Shri R.C.
Kuntia nor Shri D.N. Padhi has signed
although their names are there. He does not
know the witnesses who had signed in the
applications in B Series. All the applicants
signed in the presence of the Executive
Engineer, in Exhibit B series. Then, he again
says, he cannot say in whose presence the
applicants signed in Exhibit B Series. He
cannot say who has given the application form
to the applicants in Exhibit B Series. He
denies that signatures of the applicants were
obtained forcibly.
52
OPW2-Management Witness No.2, is the
Manager of a Division. He joined as Manager
on 16.04.2002. Prior to this, he was working
as the Deputy Manager with the Corporation.
While he was working as SDO, 63 NMRs were
working under him. To his knowledge, now, 21
NMRs were working under the appellants. Other
42 persons have separated themselves by
obtaining VSS. By the time the VSS was
introduced. The objective of the Scheme was
widely circulated. The applicant took the
application form for VSS after signing on a
sheet of paper.
He states it to be incorrect that
signatures were taken forcibly.
In cross-examination, he states as
follows:
He came to Rengali in the year 1999. He
has no personal acquaintance with the 42
applicants. He cannot say if any high-level
discussion was made or not. The information
was notified on the office board. The VSS
Notification was made in English. All the
NMRs were not conversant with English. The
Notification was not published in Oriya. The
53
condition of VSS was incorporated in the
application form and the applicants and other
NMRs were not given the Scheme for their
information separately. At present, he
cannot say as to from which date applicants
started receiving application forms. He has
not assisted the applicants in filing the
application form. He can identify witnesses
who have signed the application form of the
applicants. Then, he says, he cannot say who
is Sahdev Raut, in what capacity he had
signed. Below the signature of the witnesses,
their designation and date have not been
given. He has no knowledge about the pendency
of the case in the Supreme Court. He has no
knowledge about the withdrawal of the
application by AW1. He says, it is not a fact
that the signatures of the applicants were
taken forcibly giving impression that their
services will be regularized.
(Emphasis supplied)
THE DOCUMENTARY EVIDENCE
54. The documentary evidence, which is produced by the
applicants, is as follows:
54
a.The OER (Transfer of Undertaking, Assets, Liabilities,
Proceedings and Personnel) Scheme Rules, 1996;
b.The Order passed by the High Court in O.J.C. No. 2420
of 1989, which we have already adverted to;
c.The letter written by the first applicant dated
01.06.2000, which we have already extracted;
d.The Gazette Notification dated 01.04.1996 regarding
change over from the Government.
55. As far as documentary evidence of the appellants is
concerned, they are as follows:
Exhibit ‘A’ is the Notification dated
27.04.2000 constituting the Recommending
Committee. It also contains the Scheme itself.
Exhibit ‘A/I’ is the Notification dated 17.06.2000
indicating that the VSS will be enforced for a
period of six days from 19.06.2000 to 24.06.2000.
Exhibit ‘A/II’ is the Notification dated
28.01.2001 indicating that the VSS will be
enforced for a period of one month from 30.01.2001
55
to 01.03.2001. Exhibit ‘B Series’ are the
applications made by the applicants. Exhibit ‘C’
is acceptance of the VSS application which is seen
marked with objection. Exhibit ‘D’ is the order
authorizing the AGM to accept the applications.
Exhibit ‘E Series’ are the payment sheets showing
payment of the legal dues and ex gratia in account
payee cheques. Exhibit ‘F’ is letter dated
15.04.2000 by the President of the Union seeking
discussion, inter alia, about enhanced amount of
VRS by NMR employees. Exhibit ‘G’ purports to be
the Minutes of the Discussion held between the
Management and the Union on 20.05.2000 (marked
with objection). Exhibit ‘H’ is again letter dated
27.04.2000 containing points for facilitating the
smooth implementation of the Scheme. Exhibit ‘J’
purports to be the acknowledgment of VSS of NMR
employees, Sub-Division II. Exhibit ‘K’ purports
to be the Office Order dated 13.06.2000 relieving
the applicants.
56
FINDINGS OF THE LABOUR COURT
56. The Labour Court found that the application under
Section 33A of the Act is maintainable. This is on the basis
that, had the VSS been in the true sense, there would not
have been any illegality. It is found that the applicants
have challenged the Scheme as illegal and the applications
were obtained by misrepresentation. On that basis, it was
found that the application was maintainable. Thereafter,
the Labour Court goes through the evidence and has recorded
the following findings:
“9. I have gone through the evidence of
witnesses examined on either side so also the
documents exhibited. There was no demand from
the side of the complainants nor there was any
proposal from the side of the officials for
introduction of Voluntary Separation Scheme
or Voluntary Retirement Scheme. Similarly
the SDO and the Executive Engineer of OHPC
have never recommended for reducing the staff
strength. Admittedly Voluntary Separation
Scheme was not published widely for the
information of NMRs and therefore it cannot
be exported that the NMRs signed the
Voluntary Separation Scheme applications
knowing its content and consequences. On a
reference to Ext.3 it is clear that A.W.1
though submitted application for Voluntary
Separation Scheme either under pressure or
57
under a wrong notion he has withdrawn the same
on 1.6.2000 but the application of Sri Sahoo
was not returned back and he was given the
Voluntary Separation Scheme. Therefore I am
of the considered view that the Voluntary
Separation Scheme was not the choice of the
complainants but it was thrust upon the
complainants and therefore amounts to
refused of employment to the guise of
Voluntary Separation Scheme.
10. In view of the discussions made
above, the action of the management opposite
parties in implementing the Voluntary
Separation Scheme forcibly or by
misrepresentation is illegal and
unjustified. The complainants are entitled
to be reinstated in service and are deemed to
be continuing in service from the date of the
Voluntary Separation Scheme was implemented.
The management opposite parties have paid
certain amount to the complainants being the
benefits under Voluntary Separation Scheme.
The complainants will be eligible to get 70%
(seventy percent) back wages and the amount
already paid by the management to the
complainants towards the Voluntary
Separation Scheme benefit shall be adjusted.
The Award shall be implemented by the
opposite parties within one month from the
date of its Notification for publication.”
57. The substance of the findings is contained in
paragraph-9 (extracted above). It is found that there was
no demand from the applicants. There was no proposal from
the officials for introduction of the Scheme. The SDO and
58
the Executive Engineer of the Corporation never recommended
for reducing staff strength. Admittedly, the Scheme was not
published widely for the information of NMRs. Reference is
made to the application made by AW1, which we have
extracted. On this finding, the Labour Court finds that the
Scheme was not the choice of the applicants but it was thrust
upon the applicants. This amounted to refusal of employment
in the guise of the Scheme. On this basis, the relief was
granted. The relief consisted of directing reinstatement
in service and the applicants were deemed to be working
continuously in service from the date of the Scheme being
implemented. Noticing that certain amounts had been paid
to the applicants and directing that the applicants would
get 70 per cent of the back-wages, the amounts were directed
to be adjusted.
58. It may be necessary to notice one development which
took place in the High Court. In the High Court, when
application was made under Section 17B of the Act, the
applicants were directed to deposit the amount which they
received. 28 applicants deposited the amount which they
59
received under the Scheme. It is not disputed that the said
amounts are with the appellants.
THE JUDGMENT IN O.J.C. NO. 2420
59. In the first place, we must notice the judgment of the
High Court of Orissa rendered in O.J.C. No. 2420 of 1989.
In the same, the Court, inter alia, held as follows:
“The petitioner represents a large
number of N.M.Rs. who were employed in
Rengali Hydro Electric Project and the like
projects. Presently, they are under the
Energy Department of the Government of
Orissa. The prayer of the petitioner union is
to direct the opposite parties to regularize
the services of the N.M.R. employees and to
pay them emoluments equal to those of regular
employees discharging the same nature of
work.
We need not traverse the legal ground as
the same has been duly taken note of in a
recent decision of this court in Balaram
Sahu-v-State of Orissa, 74(1992) CLT 367 and
following what was stated in that judgment
the facts of the two cases being similar. We
direct regularization of those members of the
union who have served continuously for a
period of five years by today. The opposite
parties shall find out with reference to
Annexure-7 or any other document available to
them as to which of the members of the
petitioner-union have completed five years
60
of continuous service by today. It may be
pointed out here that in Annexure-7, details
have been given about 281 (though the last
serial number is 280 in Annexure-7, Shri Das
states that sl. No. 114 was mentioned twice
by mistake) persons. Learned counsel states
that details of 85 workmen represented by the
petitioner-union who have been transferred
to different divisions could not be made
available to the court. …”
(Emphasis supplied)
60. The court went on, no doubt, to consider the pay to be
given to the NMR workers. The court proceeded to hold “there
was no reason for discriminating the NMR employees from
other regular employed persons”.
THE JUDGMENT IN CIVIL APPEAL NOS.7342-7343 OF 1993
61. The Civil Appeal, which was carried against the same,
was finally decided by this Court in State of Orissa and
others v. Balaram Sahu and others 11 . The judgment was
rendered on 29.10.2002. From the perusal of the said
judgment, we find that this Court did not deem it fit to
11 (2003) 1 SCC 250
61
interfere with the judgment of the High Court as such. This
is what this Court said:
“14. For all the reasons stated above,
the appeals are allowed and the orders
of the High Court are set aside insofar
as the pay equal to that of the regular
employed staff has been ordered to be
given to the NMR/daily-wager/casual
workers, as indicated above, to which
they will not be eligible or entitled,
till they are regularized and taken as
the permanent members of the
establishment. For the period prior to
such permanent status/regularization,
they would be entitled to be paid only
at the rate of the minimum wages
prescribed or notified, if it is more
than what they were being paid as ordered
by this Court in Jasmer Singh
case [(1996) 11 SCC 77 : 1997 SCC (L&S)
210]. There will be no order as to
costs.”
(Emphasis supplied)
62. Thus, the judgment, insofar as it related to the
direction to regularize the members of the writ
petitioners’ union, became final on 29.10.2002.
63. The judgement of the High Court was dated 28.10.1992.
Thus, we proceed on the basis, therefore, that the
applicants, were members of the writ petitioners’ union in
62
O.J.C. No. 2420 of 1989, who became entitled under the
judgment of the High Court which was affirmed by this Court
as regards the direction for regularization provided they
had served continuously for a period of five years as on
28.10.1992, i.e., the date of the judgment of the High
Court.
64. According to the learned counsel for the appellants,
in fact, a Scheme was floated to effectuate regularization
as ordered by the court. It appears to be their case that
the appellants also floated the VSS.
65. Going by the judgment of the High Court in O.J.C.
No.2420 of 1989, those members of the writ petitioners’
union who served continuously for a period of five years
till 28.10.1992 (date of judgment) were entitled to
regularization as the High Court had directed
regularization. They had indeed acquired a legal right.
This was undoubtedly subject to the lis pending in this
Court. A period of five years continuous service prior to
28.10.1992 would mean those employees who were members of
63
the writ petitioners’ union before the High Court in O.J.C.
No. 2420 of 1989, would be employees who were appointed on
or before 27.10.1987. In fact, going by the deposition of
applicants, it would appear that AW1 claimed to be working
since 1988. This means AW1 apparently was not one who was
covered by the direction for regularization by the High
Court as he was working from 03.06.1988. He would complete
five years only by 02.06.1993. Though, in the application,
there is reference to O.J.C. No.1527 of 1991, in his
deposition, he refers only to O.J.C. No.2420 of 1989. No
doubt, as far as AW2 to AW4, going by the dates given, which
we have already indicated, if they had worked continuously
from the dates, they would be covered by the order of the
High Court for regularization. We are considering the VSS
which was introduced during the pendency of the litigation
before this Court. This means that while they had acquired
a right under the direction of the High Court, the sword
of Damocles over-hanged them in the form of the uncertainty
confronting them as the direction in their favour could be
either confirmed or overturned by this Court.
64
66. In other words, the direction in their favour had not
become final. We have stated this only to highlight that
if the VSS was floated and it was found sufficiently
attractive, it would not be unnatural for them or unfair
to them to take advantage of the same. In this regard, the
appellants have projected before us that out of the 281 NMRs
and Contingent Khalasis who opted for the Scheme, the
Corporation accepted the applications for 271 workers. It
is only the 90 applicants, it is pointed out, who have made
a somersault and sought to resile from the applications
which were made by them.
67. The application under section 33A of the Act was filed
after several months from the date of receiving the ex
gratia payment. There is also the case of the appellants
that there was a letter from the President of the Workers’
Union of 15.04.2000, which was before the circulation of
the Scheme, requesting for enhancing the amount for VRS for
the NMR workers. There are Minutes of the discussion held
on 20.05.2000 between the Management and the
representatives of the Union. The Minutes indicate that the
65
issue relating to the VSS, which was taken up for
discussion, was – “(1) Enhanced amount of VSS for the NMR
employees”.
68. It may be true that the Notification dated 27.04.2000
was published in English. So were the further Notifications
dated 17.06.2000 and 28.01.2000.
69. There is no dispute that the applicants have been
favoured with an amount of Rs.1,25,000/- which is the amount
which is contemplated under the Scheme besides other
amounts. These amounts have been paid by cheques into the
accounts of the applicants. The applications which have
been produced before us appear to be witnessed by two
witnesses. This is as per the terms of the Notification
which contemplates that the application must be signed by
two witnesses. So also, in regard to the payments which are
effected, the authorization appears to be supported by the
signatures of two witnesses.
66
70. No doubt, as far as this aspect is concerned, the
applicants do not dispute that they have received the
payments. In fact, they will not be in a position to
establish that they have not received the payments. They
would brush aside the payments on the basis that they were
paid some amounts which they thought they were entitled to
on the basis that they were being regularized. A sum of
Rs.1,25,000/- plus other benefits was paid to all the
applicants. This amount happens to be also the amount which
was contemplated under the VSS.
71. None of the applicants have a case that the signatures
in the applications have not been appended by them. They
do not appear to have a case about the witnesses as such
except as we have noticed in the evidence. It may be true
that one applicant out of the 90 has written a letter
purporting to withdraw. It is noteworthy that other 89
applicants had not made any application seeking to
withdraw. In the application filed by one worker (First
Applicant), which we have extracted, he would state that
he was threatened and coerced and, being afraid, he was made
67
to sign the application for VSS against his wish. He never
intended to take the VSS and he was told that he would be
forced to dire striats. No doubt, his application is dated
01.06.2000, which is the very next date of the making of
his application. It may be remembered that AW1 was not a
person who was entitled even to the benefit of the order
passed by the High Court as he had not completed five years
as on the date of the judgment. There can be no similarity
between a case of threat or coercion on the one hand and
fraud.
72. The manner in which fraud was perpetuated, the exact
nature of the fraud and person or persons by whom the fraud
was perpetuated, are found missing in the pleadings, as
noticed by us. As far as the first applicant is concerned,
the prevarication in his case is palpable and discernible
from the somersault that he carried out in the pleading in
the application in comparison with his case in the letter,
which he wrote seeking to withdraw from the Scheme, on
01.06.2000, wherein the case was built around alleged
threat and coercion. It may be noticed that coercion is
68
another element which is antithetical to free consent and
is separately dealt with under Section 15 of the Contract
Act. He minces no words after employing the expression
“threat, coercion”, when he declared that being afraid, he
was made to sign the VSS against his wish. He was threatened
with being forced into dire straits unless he signs the
application. Conspicuous by its absence, in his letter
dated 01.06.2000, is even the faintest whisper about fraud
of any kind. This is the application dated 01.06.2000. It
must be noted it is on the very next day after he made the
application claiming the VSS on 31.05.2000. The application
under Section 33A of the Act, on the other hand, came to
be filed much later, i.e., on 19.04.2001, after several
months. In the pleading, in paragraph-9 of the application,
as to who defrauded amongst the authorities, is not pleaded.
It must be noted that the persons arrayed in the application
are the General Manager (Electrical); Manager
(Electrical); Maintenance Division; Manager (Electrical),
Protection and Control Division; Director (HRD) of the
Corporation. It is not even mentioned as to who amongst them
69
committed the alleged act of fraud. No doubt, the fraud
could be committed by either the opposite parties or anyone
action at their behest. If so, it should have been pleaded.
There is no such plea forthcoming. The substance of the plea
is that for regularization, which we gather, on a liberal
reading of the application, being one under the Act and
bearing in mind also the need to be not far too strict,
enmass signatures of workers were taken on certain papers
and by showing undue influence. The pleas of fraud and undue
influence are distinct and separate. It will be noticed that
the case of coercion and threat does not make its appearance
in the pleading.
73. Coming to the oral evidence, AW1, as noticed by us,
states that he and other applicants were given to understand
that their services will be regularised and signatures were
taken on the VSS form. He further says that his signatures
and that of the other applicants were taken by appellants
forcibly giving an impression that their services will be
regularised. As has been noticed by us, there is no case
70
of force which is used in paragraph-9 of the application,
which constitutes the sole pleading.
74. Passing in to AW2, he would say that the appellants gave
them an impression that their services would be regularised
and, at the first instance, their signature was taken on
a blank paper and subsequently on a form. Subsequently, he
came to know that it is meant for the Scheme and he drew
attention of the authorities (There is no mention about
before whom he ventilated his objection. No written
document is forthcoming). He would state that the
signatures were obtained at the Divisional Level giving the
same impression. In cross, he says he has no knowledge about
VSS prior to his refusal of employment. It is further stated
that it is not a fact that the signatures of the applicants
were not taken forcibly and fraudulently by the appellants.
This is about all that AW2 has to say. The inconsistency
between “fraudulently” and “forcibly” is self-evident and
“forcibly” is not vaguely pleaded.
71
75. AW 3 would state that with the instigation of the higher
authorities, their signatures in the VSS were taken
forcibly. In the similar way, the signatures of all the
applicants were taken. No doubt, he speaks about the notice
not being published nor it being circulated amongst the
workers. It was not published in any local newspaper. In
cross-examination, he would state that it is not a fact that
he and other applicants were not refused employment
forcibly nor the condition of service changed. On
conspectus of his evidence, his deposit9ion is only to the
effect that the application of AW3 and other applicants were
secured forcibly. This is completely incompatible with the
case of fraud which is pleaded and there is no pleading for
force being used as we have noticed.
76. Coming to the last witness AW4, he would state that
their signature was taken on an application and three to
four blank papers. They were given to understand that their
services would be regularised. But in cross-examination,
he would state that the Executive Engineer and HR have
72
compelled him and others to sign. The complete
prevarication is palpable and does not require any
elucidation. This would qualify as a case where the pleading
does not match up to the requirements of the case. The state
of the evidence, which is adduced, makes matters even worse.
77. A perusal of the documentary evidence, produced by the
applicants, would show that they have nothing to do about
establishing the case set up by the applicants. On the other
hand, the protest letter dated 01.06.2000 sent by the
firstly applicant completely demolishes the case as pleaded
in the application. It is noteworthy that apart from the
first applicant, none of the 89 other applicants have
registered their protest about the VSS. Though there is
mention about a letter sent to the Conciliation Officer,
it is not brought on record.
78. As against this, the appellants have produced a wealth
of documentary evidence before the Labour Court. Exhibits
‘A’ to ‘K’ were produced. They included the applications
which were signed by the applicants and two witnesses; the
73
VSS Scheme itself; the document evidencing the
authorisation of payments of the amounts under the VSS
Scheme; the Charter of Demand before the Management for
discussion-Exhibit ‘F’. The Minutes of the Discussion of
the meeting which was held on 20.05.2000. The Minutes would
indicate that regularisation of 43 NMR workers out of total
of 343 was to be considered in terms of the Scheme for
regularisation of the NMR workers after the VSS/VRS Scheme,
is implemented in respect of 300 workers. This is item no.1.
The next item no.2 dealt with enhanced amount of VSS for
NMR employees. After a detailed discussion, it was mutually
decided that this was not possible.
79. Item nos. 3 and 4 would show that it was decided that
43 NMR employees will be regularised on the basis of skill
and qualification, seniority in terms of regularisation of
NMR workers.
80. Though there was a direction by the High Court to direct
all the employees of the writ petitioners’ union, the
matters stood challenged before this Court in Civil Appeal
and as on date when VSS Scheme was floated and the
74
regularisation scheme also was enforced, this Court had not
yet rendered its judgment. Upholding the direction to
regularise, the decision of this Court was rendered only
in the year 2002.
81. Having regard to the materials, we would think,
therefore, that the applicants have failed to plead and
prove, and on the yardstick of it being a case of no
evidence, the Award became infirm and was liable to be
interfered with. At any rate, the findings, which have been
rendered by the Labour Court, which is to the effect that
it was not the choice of the applicants and was thrust upon
the complainants amounting to refusal of employment, is
completely insupportable both in law and on facts. The
finding that there was no demand from the side of the
complainants for the introduction of the VSS is completely
irrelevant, as, as an employer, it was certainly open to
devise such policy which was in the best interest of the
Corporation. Validity of the Scheme did not depend upon the
Scheme having its origin in a demand by the workmen. The
finding that there was no proposal for the Scheme or
75
recommendation for reducing the staff strength was wholly
irrelevant. It is the factum of the Scheme being propounded,
in fact and implemented elsewhere as well, which should have
been considered by the Labour Court.
82. We noticed that in paragraph-9 of the application after
stating about getting the signatures enmass on certain
papers under the pretext of regularisation and by showing
undue influence of regularisation that since the projects
were temporary and they are to be regularised in the
Corporation in regular cadre, the old job will come to an
end and a new job in the Corporation would start afresh for
which workmen without understanding the implication of the
application, have signed on such application. From the
evidence which consists of the testimony of AW1 to AW4, as
far as this aspect is concerned, there is no evidence at
all. It is true, in the response of the appellants, it has
been pleaded in paragraph-8 that a Scheme has been displayed
on the notice board and the same has been widely circulated
for information of all concerned. However, the witness for
the appellants, in evidence, has deposed that the VSS was
76
not published in any newspaper. It is stated that it is not
published in any newspaper for the information of the
general public. He also does say that it is not notified
in the Gazette either by the Government or by the
Corporation. The second witness for the appellants also
states that implementation was notified on the Office
Notice Board. It was made in English and the NMRs were not
conversant with English. Nothing was published in Oriya.
We have also undoubtedly taken note of the deposition of
AW1 to AW4 which appears to project the case of
non-publication of the Scheme. In this regard, we must
notice the following features:
1.The applicants themselves lay store by the judgment of
the High Court in the earlier Writ Petition O.J.C.
No.2420 of 1989. Therein, the petitioner was the
Rengali Power Projects Workers’ Union.
2.Apparently, the applicants claimed to be members of the
said Union. AW1, in fact, in his deposition, also
refers to the order passed in O.J.C. No. 2420 of 1989
and that the appellants did not comply with the
77
direction of the High Court and appeal is pending in
this Court. Therefore, applicants must be understood
as being members of the Union. They must also be treated
as aware of the pendency of the civil appeal in this
Court.
83. It is pertinent to note, in this regard that there is
evidence (OPW1), to show that before implementation of the
VSS, discussion took place on 10.04.2000 and 15.04.2000.
Most importantly, Exhibit ‘F’ is a letter sent by one Mr.
R.C. Kuntia dated 15.04.2000, written to the
Chairman-cum-Managing Director of the
appellant-Corporation that he stood elected as the
President of the Union. They had some important problems
to be discussed with the Management. He requested for a date
and time to discuss the problems. Under the heading “Agenda
of the Discussion”, Item No.2 was “Enhance the amount of
VRS for the NMR employees”. This document was, in fact,
marked without any objection through OPW1. The discussions
took place on 20.05.2000. Item no.2 was about enhancing
78
amount of VSS for NMR workers. It was decided, after a
detailed discussion that it was not possible. Therefore,
the only finding possible is that the Union to which the
applicants belonged, wanted the VSS amount to be enhanced.
This aspect has not been considered at all by the Labour
Court. It is true that the document was marked as Exhibit
‘G’ with objection. In the cross-examination of the
witness, through whom Exhibit ‘G’ was marked, there is no
suggestion that such a discussion did not take place or the
discussion did not relate to the enhanced payment under the
VSS. But it is true that OPW1 admits that in Exhibit ‘G’,
the two Office Bearers have not signed though their names
are appearing. However, there is no cross-examination about
discussion taking place prior to implementation.
Therefore, this would, at any rate, show that the
applicants, who were members of the Union, were fully aware
of the VSS. There is no case for them that they were misled
or defrauded by their own Union Leaders. A perusal of the
Award would show that apart from stating that Exhibits ‘A’
to ‘K’ were marked on behalf of the appellants and Exhibits
79
‘1’ to ‘4’ were marked on behalf of the applicants, there
is no discussion about these documents at all. Thus, this
is a case where documentary evidence adduced is by
appellants is ignored by the Labour Court.
84. The finding that it cannot be accepted that the NMRs
signed knowing its contents and consequences, amounts to
nothing short of a perverse finding. The pleading and the
evidence, does not support in the least, such a finding.
On the other hand, the weight of evidence should have been
borne in mind by the Labour Court as completely eliminating
the possibility. It is surprising that the Labour Court
should find solace in the letter written by the first
applicant dated 01.06.2000 to find that he submitted the
application either under pressure or under wrong notion.
In fact, the very concept of wrong notion is missing in the
letter dated 01.06.2000(See paragraph 17 for the letter).
The Labour Court appears to be oblivious also to the fact
that there is only one such letter. Even taking it at its
face value, there is no letter written by any of the other
80
89 applicants. The Labour Court also lost sight of the fact
that the applicants were favoured with amounts under the
Scheme. By way of cheque the amounts stood credited in their
accounts. The application is moved only after several
months of receiving the benefits.
85. We are, therefore, of the clear view that no case was
made out before the Labour Court for invoking Section 33A
read with Section 33 of the Act. In the case of Writ of
Certiorari, no doubt, the Court also bears in mind that it
is not axiomatic, or that upon a finding of illegality, a
court is bound to interfere. The court may still exercise
its discretion and decline jurisdiction unless there is
manifest injustice. Bearing in mind this principle also,
we are inclined to think that the appellants have made out
a case of manifest injustice if the Award is allowed to
stand. Large sums were spent by a Public Sector Corporation
in seeking to trim its work force. The workers voluntarily
on our finding, accepting the terms of the Scheme, receiving
the benefits, and thereunder and got separated.
81
Implementing the Scheme would mean reinstatement of the
workers and that too with 70 per cent back-wages, when there
was absolutely no warrant for the same.
86. There is only one aspect which remains. During the
pendency of the Writ Petition filed by the appellants in
the High Court, 28 applicants deposited the amount which
they have received from the appellants so that application
under Section 17B of the Act could be pursued. This amount
must be directed to be returned to the concerned workmen
who had made the deposit and we also feel that the amount
should be returned with interest.
87. Accordingly, the appeal is allowed and the judgment of
the High Court is set aside. The Award passed by the Labour
Court is set aside and the application filed by the
applicants is dismissed. However, the appellants will
return the entire amount deposited with them by the 28
applicants with interest at the rate of 8 per cent per annum
from the date of deposit till the date of payment. The amount
shall be returned back with interest as above to the
82
applicants concerned within a period of two months form the
date of receipt of copy of this judgment.
88. There shall be no order as to costs.
..................J.
(SANJAY KISHAN KAUL)
..................J.
(K.M. JOSEPH)
New Delhi,
September 12, 2019.
