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

1

called in question before the High Court was the Award

passed by the Labour Court, Bhubaneswar.

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.

2

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

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

3

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.

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

4

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.

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-

5

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 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

6

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. 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

7

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.

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

8

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.

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

9

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 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

10

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 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

11

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.

Sub: Regarding withdrawal of my VSS

Application.

Sir

12

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 judgment of this Court in Management

13

of Madurantakam Coop. Sugar Mills Limited v. S.

Viswanathan

1

.

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

1 (2005) 3 SCC 193

14

the Certiorari jurisdiction and the argument has been

found 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

2 AIR 1954 SC 440

15

the evidence upon which the determination

of the inferior tribunal 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

16

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 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

3 AIR 1955 SC 233

17

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 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)

18

23.The question arose in Dharangadhara Chemical Works

Ltd. v. State of Saurashtra and others

4

. 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 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 another

5

, 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

4 AIR 1957 SC 264

5 AIR 1964 SC 477

19

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

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

20

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

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

21

others

6

. 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 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

6 AIR 1970 SC 1334

22

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’ Association

7

. We

may only advert to the following paragraphs:

“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

7 (2004) 10 SCC 460

23

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 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

24

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” 9

th

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)

25

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

26

not reappreciate evidence. The Writ of

Certiorari is intended to 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

27

body which has jurisdiction to decide the matter

has the 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

28

this Court has laid down [See M/s. Perry and Co.

Ltd (supra)].

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,

29

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.”

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

30

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.”

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

31

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 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:

32

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 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

33

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.

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

34

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 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;

35

(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 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

36

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.”

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.”

37

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 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.

38

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 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.

39

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 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

40

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:

“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

41

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

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

42

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 others

8

, the case arose under Section 25-FFF of the

Act 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:

8 AIR 1973 SC 878

43

“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 Patel

9

,

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

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 AIR 1976 SC 98

44

“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

pleading it. Since a charge of

victimisation is a serious matter

reflecting, to a degree, upon the

45

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

46

others v. O.P. Swarnakar and others

10

, was dealing with

the case of voluntary retirement scheme floated by the

bank. 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

10 (2003) 2 SCC 721

47

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 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

48

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

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

49

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 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

50

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 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

51

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)

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

52

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

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

53

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 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

54

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.

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.

55

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 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

56

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:

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;

57

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 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

58

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.

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

59

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 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

60

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 the Executive Engineer of the

61

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

62

they received. 28 applicants deposited the amount which

they 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

63

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 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

11 (2003) 1 SCC 250

64

of the said judgment, we find that this Court did not

deem it fit to 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.

65

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 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.

66

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 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

67

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.

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

68

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 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

69

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.

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

70

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 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

71

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 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

72

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 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

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 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

74

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.

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

75

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 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.

76

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 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

77

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 regularisation scheme also was

enforced, this Court had not yet rendered its judgment.

78

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 recommendation

for reducing the staff strength was wholly irrelevant.

79

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

80

evidence, has deposed that the VSS was 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.

81

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 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

82

“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 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

83

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 ‘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

84

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 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

85

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. 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

86

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 applicants concerned within a

period of two months from 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.

87