TaxTMI 
TaxTMI 
2019 (9) TMI 1696
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....in Writ Petition O.J.C. No. 2420 of 1989, held that the NMR workers in the Rengali Hydro Electric Project (RHEP) who had worked continuously for a period of five years on the date of the judgment, were entitled for regularization. They were found entitled to same pay as regular employees. The Appellants challenged the same by a Special Leave Petition which was converted to Civil Appeal Nos. 7342-7343 of 1993. 4. In short, the case of the applicants (who were NMR workers in the Rengali Unit) before the Labour Court was that a reference had been made to the Labour Court dated 02.07.1999 for adjudicating disputes between the Appellants-Management and its workmen. Issues were 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 turne....
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....lication 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 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 deci....
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....12.04.1993. It was further pointed out with reference to Exhibit 'H' which is produced before the Labour Court that applications contemplated witnesses. The witnesses were to be regular or work-charged employees in RHEP. Their names were to be disclosed. Clause (08) of Exhibit 'H' dated 24.04.2000, read as follows and was relied upon: 08. The willing employees will be required to open a SB Account in any Nationalised Bank in the locality because the payment toward ex-gratia and lump sum amount will be made by way of A/c Payee Cheque. To facilitate opening of Bank Account, a sum of Rs. 500/- may be paid to the concerned employee on request by way of advance which will be adjusted against his final dues. 15. He further submitted that on the basis of the applications filed by all the applicants along with several others, who had also applied, the Appellant had applied the 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....
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....ned 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 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 op....
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....of the fact give it jurisdiction which it would not otherwise possess [Vide Banbury v. Fuller, 9 Exch. 111; R v. Income Tax Special Purposes Commissioners, 21 QBD 313]. 10. A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the Rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must 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 exe....
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....orari Under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or 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....
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.... 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 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 m....
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.... extends to any case where the evidence 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 unauthorised 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) 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 intend....
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.... would be the same as a finding which is wholly unwarranted by the evidence which is what this Court has laid down [See M/s. Perry and Co. Ltd. (supra)]. THE APPLICATION UNDER SECTION 33A OF THE ACT 30. The applicants were NMR workers. They moved the application before the Labour Court alleging violation of Section 33(1) of the Act. Section 33(1) of the Act, reads as follows: 33(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before 2 an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall-- (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. 31. Section 33A of the Act, reads as follows: 33A. S....
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....MR workers those who have completed 5 years of service or otherwise payment equal pay for equal work as their counter part in regular establishments are getting in the Rengali Hydro Power Project. 36. There is reference to the matters, which were pending, which we have, inter alia, referred to. We must notice the further pleading in the application filed by the applicants Under Section 33A of the Act: 9. To defraud the workmen for regularization of their services, appropriate authorities have obtained their signatures 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, actio....
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....fect 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 2, 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 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, h....
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....hich, 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. 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 be....
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....al 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 Code of Civil Procedure, as such, is not applicable to proceedings under the Act. Does it mean that the law as to pleadings is not to apply at all to proceedings under the Act or will it be more correct to say that the law as to pleadings will apply but without its full vigor. We would think the latter would be the correct position in law. While the provisions of the Code of Civil Procedure 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 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 conditio....
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.... 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 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 Ors. v. O.P. Swarnakar and Ors. (2003) 2 SCC 721, was dealing wit....
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....r by the time he joined in service. 327 persons, including AW1, were working during his tenure. He denied that he, along with other applicants, signed in the Scheme. He stated it that it is not a fact that he had given the application in the Scheme out of his own without any compulsion or force. So also the other applicants. AW2 is one Chirtamani Patra. He joined from 04.05.1987 and till 13.06.2000, he worked continuously. The Appellants gave them the impression that their services will be regularized and, at first instance, their signature was taken on a blank paper and subsequently in a form. Subsequently, he could know that the form was meant for VSS. Prior to taking signatures in the VSS form, no intimation or no notice was given regarding the VSS. He had drawn attention to the authorities regarding taking of his signatures in the VSS application form. The 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 V....
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....Shri A.K. Mitra to accept the application. Exhibit 'E Series' are the payment sheets showing the payment of their legal dues and ex gratia in account payee cheque. Exhibit 'C Series' are marked with objection. It is stated in Indrawati, the Management implemented the VSS and 690 persons were given VSS in December, 1999. Exhibit 'A/I' is the Notification extending the VSS till 24.06.2000. Exhibit 'A/II' is the Notification extending the VSS till 01.03.2001. Discussion was made with Rengali Power Projects Workers Union before implementing the VSS on 10.04.2000 AND 14/15.04.2000. The President had given the agenda for discussion vide Exhibit 'F' including VRS for NMR employees. Finally, discussion was held on 20.05.2000 as per Exhibit 'G' (marked with objection). The Union was aware of the implementation of the VSS prior to the implementation. The witnesses have signed in Exhibit 'E Series'. Exhibit 'H' is the guideline issued by the Corporate Office. The suggestion that signatures of the applicants have been taken forcibly, has been denied. An amount of Rs. 5,500/- paid to the applicants as ex gratia towards the enhanced....
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....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 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 ....
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....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 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, ....
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....er alia, held as follows: The Petitioner represents a large number of N.M. Rs. who were employed in Rengali Hydro Electric Project and the like projects. Presently, they are under the Energy Department of the Government of Orissa. The prayer of the Petitioner union is to direct the opposite parties to regularize the services of the N.M.R. employees and to pay them emoluments equal to those of regular employees discharging the same nature of work. We need not traverse the legal ground as the same has been duly taken note of in a recent decision of this Court in Balaram Sahu v. State of Orissa, 74(1992) CLT 367 and following what was stated in that judgment the facts of the two cases being similar. We direct regularization of those members of the union who have served continuously for a period of five years by today. The opposite parties shall find out with reference to Annexure-7 or any other document available to them as to which of the members of the Petitioner-union have completed five years 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 Da....
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....ate regularization as ordered by the court. It appears to be their case that the Appellants also floated the VSS. 65. Going by the judgment of the High Court in O.J.C. No. 2420 of 1989, those members of the writ Petitioners' union who served continuously for a period of five years till 28.10.1992 (date of judgment) were entitled to regularization as the High Court had directed regularization. They had indeed acquired a legal right. This was undoubtedly subject to the lis pending in this Court. A period of five years continuous service prior to 28.10.1992 would mean those employees who were members of 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 d....
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....on 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 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....
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....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, en masse signatures of workers were taken on certain papers and by showing undue influence. The pleas of fraud and undue influence are distinct and separate. It will be noticed that the case of coercion and threat does not make its appearance in the pleading. 73. Coming to the oral evidence, AW1, as noticed by us, states that he and other applicants were given to understand that their services will be regularised and signatures were taken on the VSS form. He further says that his signatures and that of the other applicants were taken by Appellants forcibly giving an impression that their services will be regularised. As has been noticed by us, there is no case 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 ....
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....by the first* 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 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 ....
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.... in the response of the Appellants, it has been pleaded in paragraph-8 that a Scheme has been displayed on the notice board and the same has been widely circulated for information of all concerned. However, the witness for the Appellants, in evidence, has deposed that the VSS was not published in any newspaper. It is stated that it is not published in any newspaper for the information of the general public. He also does say that it is not notified in the Gazette either by the Government or by the Corporation. The second witness for the Appellants also states that implementation was notified on the Office Notice Board. It was made in English and the NMRs were not conversant with English. Nothing was published in Oriya. We have also undoubtedly taken note of the deposition of AW1 to AW4 which appears to project the case of non-publication of the Scheme. In this regard, we must notice the following features: 1. The applicants themselves lay store by the judgment of the High Court in the earlier Writ Petition O.J.C. No. 2420 of 1989. Therein, the Petitioner was the Rengali Power Projects Workers' Union. 2. Apparently, the applicants claimed to be members of the sa....
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....pplicants, there is no discussion about these documents at all. Thus, this is a case where documentary evidence adduced* by Appellants is ignored by the Labour Court. 84. The finding that it cannot be accepted that the NMRs signed knowing its contents and consequences, amounts to nothing short of a perverse finding. The pleading and the evidence, does not support in the least, such a finding. On the other hand, the weight of evidence should have been borne in mind by the Labour Court as completely eliminating the possibility. It is surprising that the Labour Court should find solace in the letter written by the first applicant dated 01.06.2000 to find that he submitted the application either under pressure or under wrong notion. In fact, the very concept of wrong notion is missing in the letter dated 01.06.2000(See paragraph 17 for the letter). The Labour Court appears to be oblivious also to the fact that there is only one such letter. Even taking it at its face value, there is no letter written by any of the other 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 credi....