# GENERAL MANAGER, ELECTRICAL RENGALI HYDRO ELECTRIC PROJECT, ORISSA AND OTHERS v. SRI GIRIDHARI SAHU AND OTHERS

- **Citation:** [2019] 12 S.C.R. 293
- **Court:** Supreme Court of India
- **Decided:** 2019-09-12
- **Case number:** Civil Appeal No. 8071 of 2010
- **Bench:** Sanjay Kishan Kaul, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/general-manager-electrical-rengali-hydro-electric-project-orissa-and-others-v-33172
- **Pages:** 50

## Headnote

Industrial Disputes Act, 1947:
s. 33A r/w. s. 33 - Application - By NMR workers/employees
of appellant - Alleging that they were prevented from discharging
their duties, by fraudulently and by applying undue influence getting
their signatures on papers of a 'Voluntary Separation Scheme', (VSS)
- Labour Court directed their reinstatement holding that the VSS
was thrust upon them - Writ petition before High Court was dismissed
on the ground that there was no jurisdictional error in passing the
award - Appeal to Supreme Court - Held: There are no sufficient
pleading with regard to fraud and undue influence - The workmen
had failed to plead and prove and it being a case of no evidence,
the Award passed by the Labour Court became infirm and was liable
to be interfered with - The employer has produced ample
documentary evidence to show that the workers voluntarily opted
for the VSS - Thus no case was made out before the Labour Court
for invoking s. 33A r/w. s. 33.
Code of Civil Procedure, 1908:
Order VI r. 4 - Rules of pleadings - Applicability of - To the
proceedings u/s. 33A of Industrial Disputes Act, 1947 - Held: The
proceedings u/s. 33A not being a civil suit, provisions of CPC would
not apply - However, the salutary principles engrained therein
would apply.
Writ:
Writ of Certiorari - Nature and scope of - Held: Jurisdiction
to issue writ of certiorari is supervisory and not appellate - It is
intended to correct jurisdictional excesses - An erroneous decision
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293
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in respect of a matter which falls within the authority of the Tribunal
would not entitle a writ applicant for a writ of Certiorari - It can be
issued when a jurisdictional error is clearly established - An error
of law which becomes vulnerable to judicial scrutiny by way of
Certiorari must be one which is apparent on the face of the record.
Words and Phrases:
'Fraud', 'Misrepresentation' and 'Undue influence' -
Meaning of.
'Fraud' and 'Misrepresentation' - Distinction between -
Discussed.
Allowing the appeal, the Court
HELD : 1.1 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. [Para 21] [308-E]
1.2 The jurisdiction to issue writ of certiorari is supervisory
and not appellate. The Court considering a writ application of
Certiorari will not don the cap of an Appellate Court. It will not
reappreciate evidence. The Writ of Certiorari is intended to
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. [Para 29] [315-B-C]
1.3 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
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the writ court. This is for the reason that a 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

## Text

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GENERAL MANAGER, ELECTRICAL RENGALI HYDRO
ELECTRIC PROJECT, ORISSA AND OTHERS
v.
SRI GIRIDHARI SAHU AND OTHERS
(Civil Appeal No. 8071 of 2010)
SEPTEMBER 12, 2019
[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
Industrial Disputes Act, 1947:
s. 33A r/w. s. 33 - Application - By NMR workers/employees
of appellant - Alleging that they were prevented from discharging
their duties, by fraudulently and by applying undue influence getting
their signatures on papers of a 'Voluntary Separation Scheme', (VSS)
- Labour Court directed their reinstatement holding that the VSS
was thrust upon them - Writ petition before High Court was dismissed
on the ground that there was no jurisdictional error in passing the
award - Appeal to Supreme Court - Held: There are no sufficient
pleading with regard to fraud and undue influence - The workmen
had failed to plead and prove and it being a case of no evidence,
the Award passed by the Labour Court became infirm and was liable
to be interfered with - The employer has produced ample
documentary evidence to show that the workers voluntarily opted
for the VSS - Thus no case was made out before the Labour Court
for invoking s. 33A r/w. s. 33.
Code of Civil Procedure, 1908:
Order VI r. 4 - Rules of pleadings - Applicability of - To the
proceedings u/s. 33A of Industrial Disputes Act, 1947 - Held: The
proceedings u/s. 33A not being a civil suit, provisions of CPC would
not apply - However, the salutary principles engrained therein
would apply.
Writ:
Writ of Certiorari - Nature and scope of - Held: Jurisdiction
to issue writ of certiorari is supervisory and not appellate - It is
intended to correct jurisdictional excesses - An erroneous decision
 [2019] 12 S.C.R. 293
293
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in respect of a matter which falls within the authority of the Tribunal
would not entitle a writ applicant for a writ of Certiorari - It can be
issued when a jurisdictional error is clearly established - An error
of law which becomes vulnerable to judicial scrutiny by way of
Certiorari must be one which is apparent on the face of the record.
Words and Phrases:
'Fraud', 'Misrepresentation' and 'Undue influence' -
Meaning of.
'Fraud' and 'Misrepresentation' - Distinction between -
Discussed.
Allowing the appeal, the Court
HELD : 1.1 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. [Para 21] [308-E]
1.2 The jurisdiction to issue writ of certiorari is supervisory
and not appellate. The Court considering a writ application of
Certiorari will not don the cap of an Appellate Court. It will not
reappreciate evidence. The Writ of Certiorari is intended to
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. [Para 29] [315-B-C]
1.3 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
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the writ court. This is for the reason that a 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
be one which is apparent on the face of the record. [Para 29]
[315-D-F]
1.4 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. 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.
[Para 29] [315-F-H]
1.5 In the case of Writ of Certiorari, no doubt, the Court
also bears in mind that it is not axiomatic, or that upon a finding
of illegality, a court is bound to interfere. The court may still
exercise its discretion and decline jurisdiction unless there is
manifest injustice. 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 accepting the terms of the Scheme,
receiving the benefits thereunder, got separated. Implementing
the Award would mean reinstatement of the workers and that too
with 70 per cent back-wages, when there was absolutely no
warrant for the same. [Para 85] [341-E-G]
Syed Yakoob v. K.S. Radhakrishnan and another AIR
1964 SC 477 : [1964] SCR 64 - followed.
M/s. Perry and Co. Ltd. v. P.C. Pal, Judge of the Second
Industrial Tribunal, Calcutta and others AIR 1970 SC
1334 : [1969] SCR 976 ; T.C. Basappa v. T. Nagappa
AIR 1954 SC 440 : [1955] SCR 250 ; Hari Vishnu
Kamath v. Ahmed Ishaque & Ors. AIR 1955 SC 233 :
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[1955] SCR 1104 ; Dharangadhara Chemical Works
Ltd. v. State of Saurashtra and others AIR 1957 SC
264 : [1957] SCR 152 ; Mukand Ltd. v. Mukand Staff
& Officers' Association (2004) 10 SCC 460 : [2004] 2
SCR 951 - relied on.
"Commentary on the Constitution of India 9th Edition"
by Durga Das Basu -
referred to.
2.1 It was during the pendency of the proceeding before
the Labour Court on the reference regarding the availability of
certain benefits to the workers 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. [Para 32] [317-B-C]
2.2 As per Order VI Rule 4 CPC, in a civil suit, if the plaintiff
alleges fraud, misrepresentation or undue influence, he is obliged
to give particulars. An allegation of fraud is a matter of a grave
nature. So is the allegation of undue influence and
misrepresentation. The intention underlying Order VI Rule 4 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. [Para 39] [318-F-G]
2.3 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
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of the fact as if it were true. In misrepresentation, on the other
hand, the person making misrepresentation believes it to be true.
But the law declares it to be misrepresentation on the basis of
information which he had and what he believed to be true was not
true. Therefore, the representation made by him becomes a
misrepresentation as it is a statement which is found to be untrue.
Fraud is committed if a person actively conceals a fact, who either
knows about the fact or believes in the existence of the fact. The
concealment must be active. It is here that mere silence has been
explained in the Exception which would affect the decision of a
person who enters into a contract to be not fraud unless the
circumstances are such that it becomes his duty to speak. His
silence itself may amount to speech. A person may make a promise
without having any intention to perform it. It is fraud. The law
further declares that any other act fitted to deceive, is fraud. So
also, any act or omission, which the law declares to be fraudulent,
amounts to fraud. Running as a golden trend however and as a
requirement of law through the various limbs of Section 17 of the
Contract Act, is the element of deceit. A person who stands
accused of fraud be it in a civil or criminal action, must entertain
an intention to commit deception. Deception can embrace various
forms and it is a matter to be judged on the facts of each case. It
is, apparently, on account of these serious circumstances that
fraud has on a legal relationship or a purported legal relationship
that the particulars and details of fraud is required if pleaded in a
civil suit or a proceeding to which the CPC applies. [Para 44]
[321-A-G]
2.4 An application under Section 33A of the Act is not a
civil suit. The provisions of Order VI Rule 4 of the CPC, as such,
is not applicable to proceedings under the Act. 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. In the present case, there is no sufficient pleading in regard
to fraud. The allegation as to undue influence is totally without
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any basis in the pleading. The VSS, if availed of by an employee
voluntarily, amounts to a contract. [Paras 46, 50 and 51] [322-G;
323-A-B; 324-F-G]
Management of Hindustan Steel Limited v. Workmen and
others AIR 1973 SC 878 : [1973] 3 SCR 303 ; Bharat
Iron Works v. Bhagubhai Balubhai Patel AIR 1976 SC
98 : [1976] 2 SCR 280 ; Bank of India and others v.
O.P. Swarnakar and others (2003) 2 SCC 721 : [2002]
5 Suppl. SCR 438 - relied on.
3.1 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. The judgment of the
High Court in O.J.C. No. 2420 of 1989 held that 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, as he would complete
five years only by 02.06.1993. [Paras 63 and 65] [333-F-G;
334-A-C]
3.2 So far as AW2 to AW4, going by the dates given, if they
had worked continuously from the dates, they would be covered
by the order of the High Court for regularization. The direction
in their favour had not become final. Thus, 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 that out of the 281 NMRs
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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. [Paras 65 and 66] [334-C-F]
3.3 The application under section 33A of the Act was filed
after several months from the date of receiving the ex gratia
payment. It is also the case of the appellants that there was a
letter from the President of the Workers' Union of 15.04.2000,
which was before the circulation of the Scheme, requesting for
enhancing the amount for VRS for the NMR workers. There are
Minutes of the discussion held on 20.05.2000 between the
Management and the representatives of the Union. The Minutes
indicate that the issue relating to the VSS, which was taken up
for discussion, was - "(1) Enhanced amount of VSS for the NMR
employees". 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. 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 appear to be witnessed by two witnesses. This is as
per the terms of the Notification which contemplates that the
application must be signed by two witnesses. So also, in regard
to the payments which are effected, the authorization appears to
be supported by the signatures of two witnesses. [Paras 67, 68
and 69] [334-G-H; 335-A]
3.4 None of the applicants have a case that the signatures
in the applications have not been appended by them. 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), 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
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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. [Para 71] [335-E-H; 336-A]
3.5 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. In the present
case, the pleading does not match up to the requirements of the
case. The state of the evidence, which is adduced, makes matters
even worse. the protest letter dated 01.06.2000 sent by the first
applicant completely demolishes the case as pleaded in the
application. 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. [Paras 72, 76 and 77] [336-B; 338-A-C]
3.6 The appellants have produced a wealth of documentary
evidence before the Labour Court. The Exhibits 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 discussionExhibit 'F'. The Minutes of the Discussion of the meeting which
was held on 20.05.2000. [Para 78] [338-C-D]
3.7 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. The findings rendered
by the Labour Court 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.
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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. 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.
[Para 81] [338-H; 339-A-C]
3.8 Therefore, from the facts of the case, the only finding
possible is that the Union to which the applicants belonged, wanted
the VSS amount to be enhanced. This aspect has not been
considered at all by the Labour Court. It is true that the document
was marked as Exhibit 'G' with objection. In the cross-examination
of the witness, through whom Exhibit 'G' was marked, there is
no suggestion that such a discussion did not take place or the
discussion did not relate to the enhanced payment under the VSS.
But it is true that OPW1 admits that in Exhibit 'G', the two Office
Bearers have not signed though their names are appearing.
However, there is no cross-examination about discussion taking
place prior to implementation. Therefore, this would, at any rate,
show that the applicants, who were members of the Union, were
fully aware of the VSS. There is no case for them that they were
misled or defrauded by their own Union Leaders. A perusal of
the Award would show that 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. Thus,
no case was made out before the Labour Court for invoking
Section 33A read with Section 33 of the Act. [Paras 83 and 85]
[340-E-G; 341-A]
State of Orissa and others v. Balaram Sahu and others
(2003) 1 SCC 250 : [2002] 3 Suppl. SCR 525 - relied
on.
4. 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 with interest at the rate of 8 per
cent per annum from the date of deposit till the date of payment
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to the concerned workmen who had made the deposit. [Paras 86
and 87] [341-G-H; 342-A]
Case Law Reference
(2005) 3 SCC 193
relied on
Para 18
[1955] SCR 250
relied on
Para 21
[1955] SCR 1104
relied on
Para 22
[1957] SCR 152
relied on
Para 23
[1964] SCR 64
followed
Para 24
[1969] SCR 976
relied on
Para 25
[2004] 2 SCR 951
relied on
Para 26
[1973] 3 SCR 303
relied on
Para 47
[1976] 2 SCR 280
relied on
Para 48
[2002] 5 Suppl. SCR 438
relied on
Para 51
[2002] 3 Suppl. SCR 525
relied on
Para 61
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8071
of 2010.
From the Judgment and Order dated 14.05.2008 of the High Court
of Orissa at Cuttack in W.P. (C) No. 3710 of 2002.
Shibashish Misra, S. Debabrata Reddy, Advs. for the Appellant.
Jayant Bhushan, Sr. Adv., Ramendra Mohan Patnaik, Arnav D.,
Ketan Shah, Advs. for the Respondents.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. This appeal by special leave is directed against judgment of the
High Court of Orissa dismissing the Writ Application filed under Articles
226 and 227 of the Constitution of India by the appellant. What was
called in question before the High Court was the Award passed by the
Labour Court, Bhubaneswar.
2. By the impugned order, the High Court had dismissed the Writ
Application and confirmed the Award. The award was passed on an
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application filed under Section 33A of the Industrial Disputes Act, 1947
(hereinafter referred to as 'the Act', for short) by 90 workers of the
appellant, the respondents herein who shall be referred as the applicants.
3. On 28.10.1992, the High Court, in Writ Petition O.J.C. No.
2420 of 1989, held that the NMR workers in the Rengali Hydro Electric
Project (RHEP) who had worked continuously for a period of five years
on the date of the judgment, were entitled for regularization. They were
found entitled to same pay as regular employees. The appellants
challenged the same by a Special Leave Petition which was converted
to Civil Appeal Nos.7342-7343 of 1993.
4. In short, the case of the applicants (who were NMR workers
in the Rengali Unit) before the Labour Court was that a reference had
been made to the Labour Court dated 02.07.1999 for adjudicating disputes
between the appellants-Management and its workmen. Issues were
essentially whether NMR workers were entitled to payment of Hydro
Allowance at revised rates. The further issue was, whether NMR
workers of the Rengali Unit of the Orissa Hydro Power Corporation,
who were being paid medical allowance, were entitled for such allowance
at revised rates.
5. The further case of the applicants, who were NMR workers in
the Application under Section 33A of the Act, was that they had signed
certain papers on the basis that it was necessary for their being
regularized but as it turned out, it was used as if they were Applications
for claiming the benefit of a Voluntary Separation Scheme (hereinafter
referred to as 'VSS' for short). They were prevented from discharging
their duties. They came to know about the deception practiced. This led
to the application under Section 33A of the Act.
6. The Labour Court found that the VSS was thrust upon the
applicants and there was no publicity and allowed the application and
directed reinstatement with 70 per cent back-wages which was directed
to be adjusted towards payments made to the applicants.
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
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contents and consequences. It was found inter alia further that the
Award was passed on appreciating the oral and documentary evidence
produced before the Labour Court. Noticing what was invoked before
the High Court was Certiorari jurisdiction and that a writ can be issued
only in exercise of the supervisory jurisdiction and finding that there was
no jurisdictional error or any error apparent on the face of it, the writ
petition was accordingly dismissed.
8. We have heard Mr. Shibashish Misra, learned counsel appearing
on behalf of the appellants and Mr. Jayant Bhushan, learned senior
counsel appearing for the applicants.
THE CONTENTIONS OF THE PARTIES
9. The appellants would submit that on 16.11.1999), the
Government of Orissa, Department of Energy, approved the proposal of
the appellant-Corporation to float the VSS after concurrence from the
Finance Department in respect of NMRs/Contingent Khalasis. On
15.04.2000, the President of the Employee Union wrote to the Chairman
to fix a date to discuss about certain issues. One of the issues was about
enhancement of the VRS for NMR employees. On 27.04.2000, the
appellant-Corporation informed the Senior General Manager that the
VSS shall be enforced from 01.05.2000 to 31.05.2000 in Rengali Unit. A
Notification, along with the Scheme, was to be circulated amongst the
workers. It is the appellants case that 260 NMRs/Contingent Khalasis
requested for separation out of 357. The Corporation accepted the
application of 254 NMRs/Contingent Khalasis. On 25.05.2000, a
discussion took place between the Management and the Union. The
decisions were taken regarding regularisation of maximum number of
43 workmen 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
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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
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 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.
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14. The Scheme was applicable to employees who had joined
before the date of ban imposed on recruitment. This submission, appellants
made, on the basis of documents which were brought on record after
the arguments had commenced. The date of ban was 12.04.1993. It
was further pointed out with reference to Exhibit 'H' which is produced
before the Labour Court that applications contemplated witnesses. The
witnesses were to be regular or work-charged employees in RHEP.
Their names were to be disclosed. Clause (08) of Exhibit 'H' dated
24.04.2000, read as follows and was relied upon:
"08.The willing employees will be required to open a SB Account
in any Nationalised Bank in the locality because the payment
toward ex-gratia and lump sum amount will be made by way of
A/c Payee Cheque. To facilitate opening of Bank Account, a sum
of Rs.500/- may be paid to the concerned employee on request
by way of advance which will be adjusted against his final dues."
15. He further submitted that on the basis of the applications filed
by all the applicants along with several others, who had also applied, the
appellant had applied the yardstick of eligibility. The workers entitled
were given the benefit under the VSS. The amount due came to be
credited into their bank accounts. Therefore, it is not open to the applicants
to resile from their position as established by their applications and set
up a case as if they have been defrauded into making such applications.
The applicants were aware of the contents and the consequences. The
Labour Court has acted illegally in arriving at the conclusions and passing
the Award, noticed by us. He also relied on (2003) 5 SCC 163; (2004) 2
SCC 193; (2006) 9 SCC 177; (2004) 9 SCC 36; (2003) 2 SCC 721;
(2016) 9 SCC 375; (2006) 3 SCC 708; (2015) 4 SCC 482; (2003) 1 SCC
250; AIR 1964 SC 477.
16. Having received the benefits under the VSS, it was not open
to the workers to reprobate. The Labour Court has clearly overlooked
the overwhelming evidence in the form of the applications duly made by
the applicants claiming benefit of the VSS, the factum of payment to the
applicants in terms of the applications into the bank accounts. He would
also further point out that the payments can be vouch saved for by the
fact that the procedure has been sanctified by there being two witnesses
to the said procedure as well.
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17. Per contra, Shri Jayant Bhushan, learned senior counsel, would
point out that this Court may appreciate that what is involved are findings
of fact rendered by the Labour Court. The High Court, under its
supervisory jurisdiction, has chosen not to interfere with such findings of
fact and they should not be disturbed by this Court in exercise of power
under Article 136 of the Constitution of India. Next, he would point out
that the applicants, who were only NMR workers, could not be attributed
with the knowledge of the contents of the Scheme. All the matters have
been appreciated by the Labour Court. He further pointed out that the
following application made by one of the applicants (the First Applicant).
It reads as follows:
 "To,
The Director (HRD),
Corporate Office,
Bhubaneswar
Through the Manager,
Maintenance Division RHEP, Rengali.
Sub:
Regarding withdrawal of my VSS Application.
Sir
The humble applicant Sri Giridhari Sahoo has been working as
NMR Welder in Maintenance Division since 3.6.1988 on 31.5.2000
upon the threat and coercion of the Management, Maintenance,
being afraid I was made to sign the VSS against my wish. I never
intended to take VSS. I was told that unless I sign the VSS
application I will lose (sic) everything and will be forced to dire
striates.
Therefore, I humbly request that my application dated 31.5.2000
may be returned to me for which I will remain ever obliged.
Yours faithfully,
Sd/-
Giridhari Sahoo
1.6.2000
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(Emphasis supplied)
18. He further contended that workers have also, immediately
after the event, moved the Conciliation Officer. This is sufficient to show
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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. Viswanathan1.
19. Per contra, the learned counsel for the appellants, would
point out that there was, at any rate, only one application in the nature of
the application which we have just referred to, namely, that is to say,
only one worker has brought on record an application stating about threat
and coercion of the appellants-Management and that the workmen never
intended to take the VSS. No doubt, the case of appellants is that the
letter of first applicant dated 01.06.2000, was not received. The evidence
has been given by only four workers. The applications have been given
by 90 applicants. Therefore, it was not open to the applicants to lay store
by the application referred to above.
THE SCOPE OF CERTIORARI JURISDICTION
20. Since, applicants contend that the findings of fact by the Labour
Court are virtually unassailable in the Certiorari jurisdiction and the
argument has been found 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. Nagappa2. 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 quasijudicial tribunals or bodies is not in an appellate but supervisory
capacity. In granting a writ of certiorari the superior court does
not exercise the powers of an appellate tribunal. It does not review
or reweigh the evidence upon which the determination of the
inferior tribunal purports to be based. It demolishes the order which
it considers to be without jurisdiction or palpably erroneous but
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2 AIR 1954 SC 440
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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.].
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9. Certiorari may lie and is generally granted when a court has
acted without or in excess of its jurisdiction. The want of jurisdiction
may arise from the nature of the subject-matter of the proceeding
or from the absence of some preliminary proceeding or the court
itself may not be legally constituted or suffer from certain disability
by reason of extraneous circumstances [Vide Halsbury, 2nd Edn.,
Vol. IX, p. 880]. When the jurisdiction of the court depends upon
the existence of some collateral fact, it is well settled that the
court cannot by a wrong decision of the fact give it jurisdiction
which it would not otherwise possess [ Vide Banbury v. Fuller, 9
Exch. 111; R v. Income Tax Special Purposes Commissioners,
21 QBD 313].
10. A tribunal may be competent to enter upon an enquiry but in
making the enquiry it may act in flagrant disregard of the rules of
procedure or where no particular procedure is prescribed, it may
violate the principles of natural justice. A writ of certiorari may be
available in such cases. An error in the decision or determination
itself may also be amenable to a writ of certiorari but it must 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
3 AIR 1955 SC 233
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Tribunal acts illegally in the exercise of its undoubted jurisdiction,
as when it decides without giving an opportunity to the parties to
be heard, or violates the principles of natural justice. (3) The court
issuing a writ of certiorari acts in exercise of a supervisory and
not appellate jurisdiction. One consequence of this is that the court
will not review findings of fact reached by the inferior court or
tribunal, even if they be erroneous. This is on the principle that a
court which has jurisdiction over a subject-matter has jurisdiction
to decide wrong as well as right, and when the legislature does
not choose to confer a right of appeal against that decision, it
would be defeating its purpose and policy, if a 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.
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23. It may therefore be taken as settled that a writ of
certiorari could be issued to correct an error of law. But it is
essential that it should be something more than a mere error; it
must be one which must be manifest on the face of the record. ...
The fact is that what is an error apparent on the face of the
record cannot be defined precisely or exhaustively, there being an
element of indefiniteness inherent in its very nature, and it must
be left to be determined judicially on the facts of each case."
(Emphasis supplied)
23. The question arose in Dharangadhara Chemical Works Ltd.
v. State of Saurashtra and others4. The question was whether the finding
by the Tribunal under the Act about the party respondents being workmen
was liable to be interfered with. After dealing with various tests relating
to 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)
4 AIR 1957 SC 264
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24. A Constitution Bench of this Court, in Syed Yakoob v. K.S.
Radhakrishnan and another5, has spoken about the scope of Writ of
Certiorari in the following terms:
"7.