TaxTMI 
TaxTMI 
2019 (9) TMI 1696
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....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 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....
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....scussion 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 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 R....
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....' 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 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 ....
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....rther 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 of Madurantakam Coop. Sugar Mills Limited v. S. Viswanathan (2005) 3 SCC 193. 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....
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.... 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 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 and Ors. AIR 1955 SC 233, 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 appe....
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....ferior 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 admiss....
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....ence 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' Association (2004) 10 SCC 460. 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....
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....hout "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) 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 Cour....
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....ency 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. 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 conciliatio....
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....s, appropriate authorities have obtained their signatures en masse 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 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 Code of Civil Procedure', for short), reads as follows: ....
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....nce 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. 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....
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....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 in a civil or criminal action, must entertain an intention to commit deception. Deception can embrace various forms and it is a m....
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....t 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 Ors. AIR 1973 SC 878, 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: 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 p....
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....f 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 Ors. v. O.P. Swarnakar and Ors. (2003) 2 SCC 721, 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 misr....
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....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 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 f....
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....ibit '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 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 ....
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....tures 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; 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' ar....
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....tary 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 the....
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....-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 Ors. v. Balaram Sahu and Ors. (2003) 1 SCC 250. 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 interfere with the judgment of the High Court as such. This is what this Court said....
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....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. 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 Khalas....
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....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 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 pleadin....
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....e 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 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 wa....
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.... 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. 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 i....
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....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 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 fo....