GENERAL MANAGER, ELECTRICAL RENGALI HYDRO ELECTRIC PROJECT, ORISSA AND OTHERS versus SRI GIRIDHARI SAHU AND OTHERS on 12 September 2019

GENERAL MANAGER, ELECTRICAL RENGALI HYDROELECTRIC 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/employeesof appellant – Alleging that they were prevented from dischargingtheir duties, by fraudulently and by applying undue influence gettingtheir signatures on papers of a ‘Voluntary Separation Scheme’, (VSS)– Labour Court directed their reinstatement holding that the VSSwas thrust upon them – Writ petition before High Court was dismissedon the ground that there was no jurisdictional error in passing theaward – Appeal to Supreme Court – Held: There are no sufficientpleading with regard to fraud and undue influence – The workmenhad failed to plead and prove and it being a case of no evidence,the Award passed by the Labour Court became infirm and was liableto be interfered with – The employer has produced ampledocumentary evidence to show that the workers voluntarily optedfor the VSS – Thus no case was made out before the Labour Courtfor invoking s. 33A r/w. s. 33.

Code of Civil Procedure, 1908:

Order VI r. 4 – Rules of pleadings – Applicability of – To theproceedings u/s. 33A of Industrial Disputes Act, 1947 – Held: Theproceedings u/s. 33A not being a civil suit, provisions of CPC wouldnot apply – However, the salutary principles engrained thereinwould apply.

Writ:

Writ of Certiorari – Nature and scope of – Held: Jurisdictionto issue writ of certiorari is supervisory and not appellate – It isintended to correct jurisdictional excesses – An erroneous decision

293

A

B

C

D

E

F

G

H

Ain respect of a matter which falls within the authority of the Tribunalwould not entitle a writ applicant for a writ of Certiorari – It can beissued when a jurisdictional error is clearly established – An errorof law which becomes vulnerable to judicial scrutiny by way ofCertiorari must be one which is apparent on the face of the record.BWords and Phrases:

‘Fraud’, ‘Misrepresentation’ and ‘Undue influence’ –Meaning of.

‘Fraud’ and ‘Misrepresentation’ – Distinction between –Discussed.C

Allowing the appeal, the Court

HELD : 1.1 An erroneous decision in respect of a matterwhich falls within the authority of the Tribunal would not entitle awrit applicant for a writ of Certiorari. However, if the decisionDrelates to anything collateral to the merit, an erroneous decisionupon which, would affect its jurisdiction, a writ of Certiorari wouldlie. [Para 21] [308-E]

1.2 The jurisdiction to issue writ of certiorari is supervisoryand not appellate. The Court considering a writ application ofCertiorari will not don the cap of an Appellate Court. It will notEreappreciate evidence. The Writ of Certiorari is intended tocorrect jurisdictional excesses. A writ of prohibition would issuewhen a Tribunal or authority has not yet concluded its proceedings.Once a decision is rendered by a body amenable to Certiorarijurisdiction, Certiorari could be issued when a jurisdictional errorFis clearly established. [Para 29] [315-B-C]

1.3 The jurisdictional error may be from failure to observethe limits of its jurisdiction. It may arise from the procedureadopted by the body after validly assuming jurisdiction. It mayact in violation of principles of natural justice. The body whoseGdecision which comes under attack may decide a collateral factwhich is also a jurisdictional fact and assume jurisdiction. Such afinding of fact is not immune from being interfered with by a Writof Certiorari. As far as the finding of fact which is one within thejurisdiction of the court, it is ordinarily a matter ‘off bounds’ for H

H

the writ court. This is for the reason that a body which hasjurisdiction to decide the matter has the jurisdiction to decide itcorrectly or wrongly. It would become a mere error and that tooan error of fact. However, gross it may amount to, it does notamount to an error of law. An error of law which becomesvulnerable to judicial scrutiny by way of Certiorari must alsobe 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 ofthe record, is a matter to be decided by the court on the facts ofeach case. A finding of fact which is not supported by any evidencewould be perverse and in fact would constitute an error of lawenabling the writ court to interfere. If the overwhelming weightof the evidence does not support the finding, it would render thedecision amendable to Certiorari jurisdiction. This would be thesame 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 Courtalso bears in mind that it is not axiomatic, or that upon a findingof illegality, a court is bound to interfere. The court may stillexercise its discretion and decline jurisdiction unless there ismanifest injustice. The appellants have made out a case of manifestinjustice if the Award is allowed to stand. Large sums were spentby 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. Implementingthe Award would mean reinstatement of the workers and that toowith 70 per cent back-wages, when there was absolutely nowarrant for the same. [Para 85] [341-E-G]

Syed Yakoob v. K.S. Radhakrishnan and anotherAIR1964 SC 477 : [1964] SCR 64 – followed.

M/s. Perry and Co. Ltd. v. P.C. Pal, Judge of the SecondIndustrial Tribunal, Calcutta and others AIR 1970 SC1334 : [1969] SCR 976 ;T.C. Basappa v. T. NagappaAIR 1954 SC 440 : [1955] SCR 250 ;Hari VishnuKamath v. Ahmed Ishaque & Ors. AIR 1955 SC 233 :

A

B

C

D

E

F

G

H

A[1955] SCR 1104 ;Dharangadhara Chemical WorksLtd. v. State of Saurashtra and othersAIR 1957 SC264 : [1957] SCR 152 ; Mukand Ltd. v. Mukand Staff& Officers’ Association(2004) 10 SCC 460 : [2004] 2SCR 951 – relied on.

B“Commentary on the Constitution of India 9th Edition”by Durga Das Basu –referred to.

2.1 It was during the pendency of the proceeding beforethe Labour Court on the reference regarding the availability ofcertain benefits to the workers that the applicants alleged denialCof employment. They alleged that in essence, they were dupedinto submitting applications as if they were intended to securethe benefit of the VSS whereas they put their signatures on theblank 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 plaintiffDalleges fraud, misrepresentation or undue influence, he is obligedto give particulars. An allegation of fraud is a matter of a gravenature. So is the allegation of undue influence andmisrepresentation. The intention underlying Order VI Rule 4 isthat the opposite party is to be put on sufficient notice as to thecase which he is called upon to meet. The law loathes, parties toEthe lis being taken by surprise resulting in the violation of thebasic principle of justice that a party should be able to effectivelymeet the case set up against him. [Para 39] [318-F-G]

2.3 A perusal of the definition of the word “fraud”, as definedin Section 17 of the Contract Act, would reveal that the conceptFof fraud is very wide. It includes any suggestion, as a fact, of thatwhich is not true, by a person who does or does not believe it tobe true.It may be contrasted with Section 18(1) of the ContractAct which, inter alia, defines “misrepresentation”. It providesthat it is misrepresentation if a positive assertion is made by aGperson of that which is not true in a manner which is not warrantedby the information which he has. This is despite the fact that hemay believe it to be true.In other words, in fraud, the personwho makes an untruthful suggestion, does not himself believe itto be true. He knows it to be not true, yet he makes a suggestion H

of the fact as if it were true. In misrepresentation, on the otherhand, the person making misrepresentation believes it to be true.But the law declares it to be misrepresentation on the basis ofinformation which he had and what he believed to be true was nottrue. Therefore, the representation made by him becomes amisrepresentation as it is a statement which is found to be untrue.Fraud is committed if a person actively conceals a fact, who eitherknows about the fact or believes in the existence of the fact. Theconcealment must be active. It is here that mere silence has beenexplained in the Exception which would affect the decision of aperson who enters into a contract to be not fraud unless thecircumstances are such that it becomes his duty to speak. Hissilence itself may amount to speech. A person may make a promisewithout having any intention to perform it. It is fraud. The lawfurther declares that any other act fitted to deceive, is fraud. Soalso, any act or omission, which the law declares to be fraudulent,amounts to fraud. Running as a golden trend however and as arequirement of law through the various limbs of Section 17 of theContract Act, is the element of deceit. A person who standsaccused of fraud be it in a civil or criminal action, must entertainan intention to commit deception. Deception can embrace variousforms and it is a matter to be judged on the facts of each case. Itis, apparently, on account of these serious circumstances thatfraud has on a legal relationship or a purported legal relationshipthat the particulars and details of fraud is required if pleaded in acivil 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 acivil suit. The provisions of Order VI Rule 4 of the CPC, as such,is not applicable to proceedings under the Act. While theprovisions of the CPC may not apply, the salutary principlesembodied would apply. This is for the reason that the purpose ofpleading, be it in a civil suit or other proceeding, is to allow theopposite party to meet the case of his opponent to ready theevidence to be adduced and marshal the law in support of itscase. In the present case, there is no sufficient pleading in regardto fraud. The allegation as to undue influence is totally without AB

C

D

E

FG

H

Aany basis in the pleading. The VSS, if availed of by an employeevoluntarily, amounts to a contract. [Paras 46, 50 and 51] [322-G;323-A-B; 324-F-G]

Management of Hindustan Steel Limited v. Workmen andothers AIR 1973 SC 878 : [1973] 3 SCR 303 ; BharatBIron Works v. Bhagubhai Balubhai Patel AIR 1976 SC98 : [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’Cunion in O.J.C. No. 2420 of 1989, who became entitled under thejudgment of the High Court which was affirmed by this Court asregards the direction for regularization provided they had servedcontinuously for a period of five years as on 28.10.1992, i.e., thedate of the judgment of the High Court. The judgment of theHigh Court in O.J.C. No. 2420 of 1989 held that those membersDof the writ petitioners’ union who served continuously for a periodof five years till 28.10.1992 (date of judgment) were entitled toregularization as the High Court had directed regularization. Theyhad indeed acquired a legal right. This was undoubtedly subjectto the lis pending in this Court. A period of five years continuousEservice prior to 28.10.1992 would mean those employees whowere members of the writ petitioners’ union before the HighCourt in O.J.C. No. 2420 of 1989, would be employees who wereappointed on or before 27.10.1987. In fact, going by thedeposition of applicants, it would appear that AW1 claimed to beworking since 1988. This means AW1 apparently was not oneFwho was covered by the direction for regularization by the HighCourt as he was working from 03.06.1988, as he would completefive 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 theyGhad worked continuously from the dates, they would be coveredby the order of the High Court for regularization. The directionin their favour had not become final. Thus, if the VSS was floatedand it was found sufficiently attractive, it would not be unnaturalfor them or unfair to them to take advantage of the same. In thisHregard, the appellants have projected that out of the 281 NMRs and Contingent Khalasis who opted for the Scheme, theCorporation accepted the applications for 271 workers. It is onlythe 90 applicants, it is pointed out, who have made a somersaultand sought to resile from the applications which were made bythem. [Paras 65 and 66] [334-C-F]

3.3 The application under section 33A of the Act was filedafter several months from the date of receiving the ex gratiapayment. It is also the case of the appellants that there was aletter from the President of the Workers’ Union of 15.04.2000,which was before the circulation of the Scheme, requesting forenhancing the amount for VRS for the NMR workers. There areMinutes of the discussion held on 20.05.2000 between theManagement and the representatives of the Union. The Minutesindicate that the issue relating to the VSS, which was taken upfor discussion, was – “(1) Enhanced amount of VSS for the NMRemployees”. It may be true that the Notification dated 27.04.2000was published in English. So were the further Notifications dated17.06.2000 and 28.01.2000. There is no dispute that the applicantshave been favoured with an amount of Rs.1,25,000/- which is theamount which is contemplated under the Scheme besides otheramounts. These amounts have been paid by cheques into theaccounts of the applicants. The applications which have beenproduced appear to be witnessed by two witnesses. This is asper the terms of the Notification which contemplates that theapplication must be signed by two witnesses. So also, in regardto the payments which are effected, the authorization appears tobe supported by the signatures of two witnesses. [Paras 67, 68and 69] [334-G-H; 335-A]

3.4 None of the applicants have a case that the signaturesin the applications have not been appended by them. It may betrue that one applicant out of the 90 has written a letter purportingto withdraw. It is noteworthy that other 89 applicants had notmade any application seeking to withdraw. In the application filedby one worker (First Applicant), he would state that he wasthreatened and coerced and, being afraid, he was made to signthe application for VSS against his wish. He never intended totake the VSS and he was told that he would be forced to dire A

B

C

D

E

F

G

H

Astriats. No doubt, his application is dated 01.06.2000, which isthe very next date of the making of his application. It may beremembered that AW1 was not a person who was entitled evento the benefit of the order passed by the High Court as he hadnot completed five years as on the date of the judgment. Therecan be no similarity between a case of threat or coercion on theBone hand and fraud. [Para 71] [335-E-H; 336-A]

3.5 The manner in which fraud was perpetuated, the exactnature of the fraud and person or persons by whom the fraud wasperpetuated, are found missing in the pleadings. In the presentcase, the pleading does not match up to the requirements of theCcase. The state of the evidence, which is adduced, makes matterseven worse. the protest letter dated 01.06.2000 sent by the firstapplicant completely demolishes the case as pleaded in theapplication. Apart from the first applicant, none of the 89 otherapplicants have registered their protest about the VSS. ThoughDthere is mention about a letter sent to the Conciliation Officer, itis not brought on record. [Paras 72, 76 and 77] [336-B; 338-A-C]

3.6 The appellants have produced a wealth of documentaryevidence before the Labour Court. The Exhibits included theapplications which were signed by the applicants and twoEwitnesses; the VSS Scheme itself; the document evidencing theauthorisation 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 whichwas held on 20.05.2000. [Para 78] [338-C-D]

F3.7 The applicants have failed to plead and prove, and onthe yardstick of it being a case of no evidence, the Award becameinfirm and was liable to be interfered with. The findings renderedby the Labour Court that it was not the choice of the applicantsand was thrust upon the complainants amounting to refusal ofemployment, is completely insupportable both in law and on facts.GThe finding that there was no demand from the side of thecomplainants for the introduction of the VSS is completelyirrelevant, as, as an employer, it was certainly open to devisesuch policy which was in the best interest of the Corporation.

H

Validity of the Scheme did not depend upon the Scheme havingits origin in a demand by the workmen. The finding that therewas no proposal for the Scheme or recommendation for reducingthe staff strength was wholly irrelevant. It is the factum of theScheme being propounded, in fact and implemented elsewhereas 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 findingpossible is that the Union to which the applicants belonged, wantedthe VSS amount to be enhanced. This aspect has not beenconsidered at all by the Labour Court. It is true that the documentwas marked as Exhibit ‘G’ with objection. In the cross-examinationof the witness, through whom Exhibit ‘G’ was marked, there isno suggestion that such a discussion did not take place or thediscussion did not relate to the enhanced payment under the VSS.But it is true that OPW1 admits that in Exhibit ‘G’, the two OfficeBearers have not signed though their names are appearing.However, there is no cross-examination about discussion takingplace prior to implementation. Therefore, this would, at any rate,show that the applicants, who were members of the Union, werefully aware of the VSS. There is no case for them that they weremisled or defrauded by their own Union Leaders. A perusal ofthe Award would show that there is no discussion about thesedocuments at all. Thus, this is a case where documentary evidenceadduced is by appellants is ignored by the Labour Court. Thus,no case was made out before the Labour Court for invokingSection 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 – reliedon.

4. During the pendency of the Writ Petition filed by theappellants in the High Court, 28 applicants deposited the amountwhich they have received from the appellants so that applicationunder Section 17B of the Act could be pursued. This amountmust be directed to be returned with interest at the rate of 8 percent per annum from the date of deposit till the date of payment AB

C

DE

F

G

H

Ato the concerned workmen who had made the deposit. [Paras 86and 87] [341-G-H; 342-A]

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8071of 2010.

EFrom the Judgment and Order dated 14.05.2008 of the High Courtof 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.F

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. This appeal by special leave is directed against judgment of theHigh Court of Orissa dismissing the Writ Application filed under ArticlesG226 and 227 of the Constitution of India by the appellant. What wascalled in question before the High Court was the Award passed by theLabour Court, Bhubaneswar.

2. By the impugned order, the High Court had dismissed the WritApplication and confirmed the Award. The award was passed on anH

application filed under Section 33A of the Industrial Disputes Act, 1947(hereinafter referred to as ‘the Act’, for short) by 90 workers of theappellant, 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 ElectricProject (RHEP) who had worked continuously for a period of five yearson the date of the judgment, were entitled for regularization. They werefound entitled to same pay as regular employees. The appellantschallenged the same by a Special Leave Petition which was convertedto Civil Appeal Nos.7342-7343 of 1993.

4. In short, the case of the applicants (who were NMR workersin the Rengali Unit) before the Labour Court was that a reference hadbeen made to the Labour Court dated 02.07.1999 for adjudicating disputesbetween the appellants-Management and its workmen. Issues wereessentially whether NMR workers were entitled to payment of HydroAllowance at revised rates. The further issue was, whether NMRworkers of the Rengali Unit of the Orissa Hydro Power Corporation,who were being paid medical allowance, were entitled for such allowanceat revised rates.

5. The further case of the applicants, who were NMR workers inthe Application under Section 33A of the Act, was that they had signedcertain papers on the basis that it was necessary for their beingregularized but as it turned out, it was used as if they were Applicationsfor claiming the benefit of a Voluntary Separation Scheme (hereinafterreferred to as ‘VSS’ for short). They were prevented from dischargingtheir duties. They came to know about the deception practiced. This ledto the application under Section 33A of the Act.

6. The Labour Court found that the VSS was thrust upon theapplicants and there was no publicity and allowed the application anddirected reinstatement with 70 per cent back-wages which was directedto 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 Courthas proceeded to find that the VSS had not been published widely forthe information of the NMR workers, and therefore, it would not beaccepted that the NMR workers signed the applications knowing its AB

CD

E

F

G

H

Acontents and consequences. It was found inter alia further that theAward was passed on appreciating the oral and documentary evidenceproduced before the Labour Court. Noticing what was invoked beforethe High Court was Certiorari jurisdiction and that a writ can be issuedonly in exercise of the supervisory jurisdiction and finding that there was no jurisdictional error or any error apparent on the face of it, the writBpetition was accordingly dismissed.

8. We have heard Mr. Shibashish Misra, learned counsel appearingon behalf of the appellants and Mr. Jayant Bhushan, learned seniorcounsel appearing for the applicants.

CTHE CONTENTIONS OF THE PARTIES

9. The appellants would submit that on 16.11.1999), theGovernment of Orissa, Department of Energy, approved the proposal ofthe appellant-Corporation to float the VSS after concurrence from theFinance Department in respect of NMRs/Contingent Khalasis. OnD15.04.2000, the President of the Employee Union wrote to the Chairmanto fix a date to discuss about certain issues. One of the issues was aboutenhancement of the VRS for NMR employees. On 27.04.2000, theappellant-Corporation informed the Senior General Manager that theVSS shall be enforced from 01.05.2000 to 31.05.2000 in Rengali Unit. ANotification, along with the Scheme, was to be circulated amongst theEworkers. It is the appellants case that 260 NMRs/Contingent Khalasisrequested for separation out of 357. The Corporation accepted theapplication of 254 NMRs/Contingent Khalasis. On 25.05.2000, adiscussion took place between the Management and the Union. Thedecisions were taken regarding regularisation of maximum number of43 workmen and also about the number of workmen to be consideredFunder the VSS. The first applicant applied on 31.05.2000 under theScheme. The application of the applicant was accepted on 08.06.2000.It is appellants case that applicant’s letter dated 01.06.2000 was neverreceived by the appellants. On 13.06.2000, in fact, first applicant soughtpayment of gratuity under the Scheme. On 17.06.2000, the CorporationGnotified extension of the VSS for six days from 14.06.2000 to 24.06.2000.During that phase, 23 NMRs/Contingent Khalasis sought VSS benefitsand the applications of 21 were accepted.

10. On 18.12.2000, an additional affidavit was filed by the appellantin this Court in Civil Appeal No. 7343 of 1993, bringing out the decisionH

to introduce the VSS and that as on 01.05.2000, inter alia, 260 personshad applied for the Scheme out of which applications of 255 wereaccepted and they had taken the benefits under the Scheme. On10.01.2001, there was a round of discussion and it was decided thatthere would be no more regularisation of NMRs at the Rengali Unit andVSS 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 to01.03.2001. Under this phase also 3 NMRs/Contingent Khalasis soughtthe benefit of the VSS. The workmen, who applied for VSS, were paidRs.1,25,000/- towards ex gratia, Rs.5,500/- towards lumpsum differentialon account of hydro and medical allowances and other amounts towardsterminal benefits life gratuity, un-availed wages, etc.. A total sum ofRs.4,03,41,675/- was disbursed under the VSS. It was thereafter that on29.05.2001, the application was filed by the 90 workers under Section33A of the Act.

11. Learned counsel for the appellants would submit that it is aclear case where the Labour Court has failed to appreciate that theapplicants before it, 90 in number, had made applications with fullknowledge of the VSS. Employees, who were working in the NMRestablishment, who had put in five years of continuous service or morein the Corporation and had three years left before attaining a particularage as on 01.01.1999, were entitled under the Scheme.

12. He has placed reliance on the applications actually filed bythe applicants. He has referred to the contents of the applications. Hehad pointed out that the VSS contemplated payment of ex gratia lumpsumof Rs.1.25 lakhs besides other amounts.

13. The purpose of the Scheme was considering the fact that theemployees of the NMR establishment could only be considered forpermanent employment in accordance with the Scheme which wasintroduced during May, 1998, and since these employees had no right toemployment without availability of work and considering that some ofthem had put in number of years of service, the VSS was introduced forseeking separation with commensurate monetary benefits. The furtherobjective was to rationalize manpower of the Corporation in the light ofthe skilled manpower required and increased productivity. Still further,the Scheme was intended to reduce redundant manpower and achieveoptimum manpower utilization.

AB

C

DE

F

G

H

A14. The Scheme was applicable to employees who had joinedbefore the date of ban imposed on recruitment. This submission, appellantsmade, on the basis of documents which were brought on record afterthe arguments had commenced. The date of ban was 12.04.1993. Itwas further pointed out with reference to Exhibit ‘H’ which is producedbefore the Labour Court that applications contemplated witnesses. TheBwitnesses were to be regular or work-charged employees in RHEP.Their names were to be disclosed. Clause (08) of Exhibit ‘H’ dated24.04.2000, read as follows and was relied upon:

“08.The willing employees will be required to open a SB Accountin any Nationalised Bank in the locality because the paymentCtoward ex-gratia and lump sum amount will be made by way ofA/c Payee Cheque. To facilitate opening of Bank Account, a sumof Rs.500/- may be paid to the concerned employee on requestby way of advance which will be adjusted against his final dues.”

15. He further submitted that on the basis of the applications filedDby all the applicants along with several others, who had also applied, theappellant had applied the yardstick of eligibility. The workers entitledwere given the benefit under the VSS. The amount due came to becredited into their bank accounts. Therefore, it is not open to the applicantsto resile from their position as established by their applications and setEup a case as if they have been defrauded into making such applications.The applicants were aware of the contents and the consequences. TheLabour Court has acted illegally in arriving at the conclusions and passingthe Award, noticed by us. He also relied on (2003) 5 SCC 163; (2004) 2SCC 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 SCCF250; AIR 1964 SC 477.

16. Having received the benefits under the VSS, it was not opento the workers to reprobate. The Labour Court has clearly overlookedthe overwhelming evidence in the form of the applications duly made bythe applicants claiming benefit of the VSS, the factum of payment to theGapplicants in terms of the applications into the bank accounts. He wouldalso further point out that the payments can be vouch saved for by thefact that the procedure has been sanctified by there being two witnessesto the said procedure as well.

17. Per contra, Shri Jayant Bhushan, learned senior counsel, wouldpoint out that this Court may appreciate that what is involved are findingsof fact rendered by the Labour Court. The High Court, under itssupervisory jurisdiction, has chosen not to interfere with such findings offact and they should not be disturbed by this Court in exercise of powerunder Article 136 of the Constitution of India. Next, he would point outthat the applicants, who were only NMR workers, could not be attributedwith the knowledge of the contents of the Scheme. All the matters havebeen appreciated by the Labour Court. He further pointed out that thefollowing application made by one of the applicants (the First Applicant).It reads as follows:

“To,

The Director (HRD),Corporate Office,BhubaneswarThrough the Manager,Maintenance Division RHEP, Rengali.

Sub:Regarding withdrawal of my VSS Application.

Sir

The humble applicant Sri Giridhari Sahoo has been working asNMR Welder in Maintenance Division since 3.6.1988 on 31.5.2000upon the threat and coercion of the Management, Maintenance,being afraid I was made to sign the VSS against my wish. I neverintended to take VSS. I was told that unless I sign the VSSapplication I will lose (sic) everything and will be forced to direstriates.

Therefore, I humbly request that my application dated 31.5.2000may be returned to me for which I will remain ever obliged.

Yours faithfully,Sd/-

Giridhari Sahoo1.6.2000xxxxxxxxxxxx”

18. He further contended that workers have also, immediatelyafter the event, moved the Conciliation Officer. This is sufficient to show A

B

C

D

E

F

G

H

Athat they were initially not cognizant of the consequences and, at anyrate, at the earliest, they have sought to resile. He also relied on thejudgment of this Court in Management of Madurantakam Coop. Sugar1Mills Limitedv. S. Viswanathan.

19. Per contra, the learned counsel for the appellants, wouldBpoint out that there was, at any rate, only one application in the nature ofthe application which we have just referred to, namely, that is to say,only one worker has brought on record an application stating about threatand coercion of the appellants-Management and that the workmen neverintended to take the VSS. No doubt, the case of appellants is that theletter of first applicant dated 01.06.2000, was not received. The evidenceChas been given by only four workers. The applications have been givenby 90 applicants. Therefore, it was not open to the applicants to lay storeby the application referred to above.

THE SCOPE OF CERTIORARI JURISDICTION

D20. Since, applicants contend that the findings of fact by the LabourCourt are virtually unassailable in the Certiorari jurisdiction and theargument has been found appealing and accepted by the High Court, itis necessary to deal with the same.

21. An erroneous decision in respect of a matter which falls withinEthe authority of the Tribunal would not entitle a writ applicant for a writof certiorari. However, if the decision relates to anything collateral tothe merit, an erroneous decision upon which, would affect its jurisdiction,a writ of certiorari would lie. See Parry & Co. Ltd. vs. CommercialEmployees Association AIR 1952 SC 179. The scope of writ of certioraricame in for an elaborate consideration by this Court in T.C. Basappa v.FT. Nagappa2. Therein, this Court, inter alia, heldas follows:

“7. … The second essential feature of a writ of certiorari is thatthe control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisorycapacity. In granting a writ of certiorari the superior court doesGnot exercise the powers of an appellate tribunal. It does not reviewor reweigh the evidenceupon which the determination of theinferior tribunal purports to be based. It demolishes the order whichit considers to be without jurisdiction or palpably erroneous but

1 (2005) 3 SCC 193H2 AIR 1954 SC 440

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 wayas one which should not be used to the detriment of any person [Vide Per Lord Cairns in Walshall’s Overseers v. London andNorth Western Railway Co., (1879) 4 AC 30, 39.].

xxxxxxxxx

9. Certiorari may lie and is generally granted when a court hasacted without or in excess of its jurisdiction.The want of jurisdictionmay arise from the nature of the subject-matter of the proceedingor from the absence of some preliminary proceeding or the courtitself may not be legally constituted or suffer from certain disabilityby reason of extraneous circumstances [Vide Halsbury, 2nd Edn.,Vol. IX, p. 880]. When the jurisdiction of the court depends uponthe existence of some collateral fact, it is well settled that thecourt cannot by a wrong decision of the fact give it jurisdictionwhich it would not otherwise possess [ Vide Banbury v. Fuller, 9Exch. 111; R v. Income Tax Special Purposes Commissioners,21 QBD 313].

10. A tribunal may be competent to enter upon an enquiry but inmaking the enquiry it may act in flagrant disregard of the rules ofprocedure or where no particular procedure is prescribed, it mayviolate the principles of natural justice. A writ of certiorari may beavailable in such cases. An error in the decision or determinationitself may also be amenable to a writ of certiorari but it must be amanifest error apparent on the face of the proceedings, e.g. whenit is based on clear ignorance or disregard of the provisions oflaw. …”

322. In Hari Vishnu Kamathv. Ahmed Ishaque & Ors., this Courtheld:

“21. … On these authorities, the following propositionsmay be taken as established: (1) Certiorari will be issued forcorrecting errors of jurisdiction, as when an inferior Court orTribunal acts without jurisdiction or in excess of it, or fails toexercise it. (2) Certiorari will also be issued when the court or A

BC

DE

F

G

ATribunal acts illegally in the exercise of its undoubted jurisdiction,as when it decides without giving an opportunity to the parties tobe heard, or violates the principles of natural justice. (3) The courtissuing a writ of certiorari acts in exercise of a supervisory andnot appellate jurisdiction. One consequence of this is that the courtwill not review findings of fact reached by the inferior court orBtribunal, even if they be erroneous.This is on the principle that acourt which has jurisdiction over a subject-matter has jurisdictionto decide wrong as well as right, and when the legislature doesnot choose to confer a right of appeal against that decision, itwould be defeating its purpose and policy, if a superior court wereCto rehear the case on the evidence, and substitute its own findingsin certiorari. These propositions are well-settled and are not indispute.

xxxxxxxxx

23. It may therefore be taken as settled that a writ ofDcertiorari could be issued to correct an error of law. But it isessential that it should be something more than a mere error; itmust 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 therecord cannot be defined precisely or exhaustively, there being anEelement of indefiniteness inherent in its very nature, and it must”be left to be determined judicially on the facts of each case.

23. The question arose in Dharangadhara Chemical Works Ltd.

v. State of Saurashtra and others4. The question was whether the findingFby the Tribunal under the Act about the party respondents being workmenwas liable to be interfered with. After dealing with various tests relatingto determining the issue, this Court also made the following observations:

“19. … It is equally well settled that the decision of theTrinbunal on a question of fact which it has jurisdiction to determineGis not liable to be questioned in proceedings under Article 226 ofthe Constitution unless at the least it is shown to be fully unsupported”by evidence.

H4 AIR 1957 SC 264

24. A Constitution Bench of this Court, in Syed Yakoobv. K.S.Radhakrishnan and another5, has spoken about the scope of Writ ofCertiorari in the following terms:

“7. The question about the limits of the jurisdiction of HighCourts in issuing a writ of certiorari under Article 226 has beenfrequently considered by this Court and the true legal position inthat behalf is no longer in doubt. A writ of certiorari can be issuedfor correcting errors of jurisdiction committed by inferior courtsor tribunals: these are cases where orders are passed by inferiorcourts or tribunals without jurisdiction, or in excess of it, or as aresult of failure to exercise jurisdiction. A writ can similarly beissued where in exercise of jurisdiction conferred on it, the courtor tribunal acts illegally or improperly, as for instance, it decides aquestion without giving an opportunity to be heard to the partyaffected by the order, or where the procedure adopted in dealingwith the dispute is opposed to principles of natural justice. Thereis, however, no doubt that the jurisdiction to issue a writ of certiorariis a supervisory jurisdiction and the court exercising it is not entitledto act as an appellate court. This limitation necessarily means thatfindings of fact reached by the inferior court or tribunal as a resultof the appreciation of evidence cannot be reopened or questionedin writ proceedings. An error of law which is apparent on theface of the record can be corrected by a writ, but not an error offact, however grave it may appear to be. In regard to a finding offact recorded by the tribunal, a writ of certiorari can be issued ifit is shown that in recording the said finding, the tribunal haderroneously refused to admit admissible and material evidence, orhad erroneously admitted inadmissible evidence which hasinfluenced the impugned finding. Similarly, if a finding of fact isbased on no evidence, that would be regarded as an error of lawwhich can be corrected by a writ of certiorari. In dealing with thiscategory of cases, however, we must always bear in mind that afinding of fact recorded by the tribunal cannot be challenged inproceedings for a writ of certiorari on the ground that the relevantand material evidence adduced before the tribunal was insufficientor inadequate to sustain the impugned finding. The adequacy orsufficiency of evidence led on a point and the inference of fact to ABC

D

E

F

G

Abe drawn from the said finding are within the exclusive jurisdictionof the tribunal, and the said points cannot be agitated before awrit court.It is within these limits that the jurisdiction conferredon the High Courts under Article 226 to issue a writ of certiorarican be legitimately exercised (vide Hari Vishnu Kamath v. AhmadIshaque [AIR 1955 SC 233] , Nagendra Nath Bora v. Commr.Bof Hills Division and Appeals [AIR 1958 SC 398] andKaushalya Devi v. Bachittar Singh [AIR 1960 SC 1168]).”

25. We may more importantly also advert to the view expressedCby this Court in a matter which again arose under the Act in M/s. Perryand Co. Ltd. v. P.C. Pal, Judge of the Second Industrial Tribunal, Calcuttaand others6. It was a case related to the scope of the jurisdiction of theTribunal in the matter of retrenchment under Section 25F. This is whatthe Court held inter alia:

D“11. The grounds on which interference by the High Courtis available in such writ petitions have by now been wellestablished. In Basappa v. Nagappa [(1955) SCR 250] it wasobserved that a writ of certiorari is generally granted when acourt has acted without or in excess of its jurisdiction. It is availablein those cases where a tribunal, though competent to enter uponEan enquiry, acts in flagrant disregard of the rules of procedure orviolates the principles of natural justice where no particularprocedure is prescribed. But a mere wrong decision cannot becorrected by a writ of certiorari as that would be using it as thecloak of an appeal in disguise but a manifest error apparent on theFface of the proceedings based on a clear ignorance or disregardof the provisions of law or absence of or excess of jurisdiction,when shown, can be so corrected. In Dharangadhara ChemicalWorks Ltd. v. State of Saurashtra [(1957) SCR 152] this Courtonce again observed that where the Tribunal having jurisdiction todecide a question comes to a finding of fact, such a finding is notGopen to question under Article 226 unless it could be shown to bewholly unwarranted by the evidence.Likewise, in State of AndhraPradesh v. S. Sree Ram Rao [AIR 1963 S.C. 1723] this Courtobserved that where the Tribunal has disabled itself from reaching a fair decision by some considerations extraneous to the evidenceand the merits of the case or where its conclusion on the veryface of it is so wholly arbitrary and capricious that no reasonableperson can ever have arrived at that conclusion interference underArticle 226 would be justified.…”

26. We may advert to the decision of this Court in Mukand Ltd. v.Mukand Staff & Officers’ Association7. We may only advert to thefollowing paragraphs:

“47. In support of his contention that this Court whileexercising its power under Article 136 of the Constitution of Indiain an appeal from the judgment of the High Court rendered inexercise of its powers under Articles 226 and 227 of theConstitution of India will exercise the same power which the HighCourt could exercise and will not interfere with the finding offacts recorded by a Tribunal, learned counsel cited the judgmentin the case of Parry & Co. Ltd. v. P.C. Pal [AIR 1970 SC 1334: (1969) 2 SCR 976] . In the said case, this Court held as under:(AIR p. 1341, para 13)

“13. Since this is an appeal arising from a writ petition forcertiorari we also would not interfere with the conclusionsarrived at by the Tribunal except on grounds on which theHigh Court could have done.”

48. In the case of Fuel Injection Ltd. v. Kamger Sabha[(1978) 1 SCC 156 : 1978 SCC (L&S) 33] this Court observed asunder: (SCC p. 157, para 3)

“But the present appeals are from a judgment of theHigh Court under Article 226 and so the jurisdiction of thisCourt in entertaining an appeal by special leave under Article136 must ordinarily be confined to what the High Court couldor would have done under Article 226.”

49. In our view, the material that was placed before theTribunal was not considered or discussed and that there was, assuch, no adjudication by the Tribunal.The whole award of the A

B

C

D

E

F

G

H

314SUPREME COURT REPORTS

ATribunal, in our view, is liable to be set aside on the ground of non-application of mind by the Tribunal to the material on record. Inthe first place, the Tribunal has no jurisdiction to entertain anddecide a dispute which covered within its fold “persons who arenot workmen”. That the material on record before the Tribunal asregards the comparable concerns was admittedly “sketchy” andBincomplete as observed by the learned Single Judge of the HighCourt and that the award based on such material could not havebeen sustained.”

C27. In Durga Das Basu “Commentary on the Constitution of India”9[th] Edition, in regard to the concept of no evidence, we find the followingdiscussion:

“No evidence’ does not mean only a total dearth ofevidence. It extends to any case where the evience taken asDa whole is not reasonably capable of supporting the finding, orwhere, in other words, no tribunal could reasonably reach thatconclusion on that evidence. This “no evidence” principle clearlyhas something in common with the principle that perverse orunreasonable action is aunauthorised and ultra vires. An ordermade without “any evidence” to support it is in truth, madeEwithout order made without “any evidence is worthless, it isequal to having “no evidence” jurisdiction.”

28. In fact, in the decision relied upon by the applicants, viz., S.FViswanathan(supra), it is, inter alia, held as follows:

“12. Normally, the Labour Court or the Industrial Tribunal, asthe 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 onlegal evidence the High Court exercising a power either underArticle 226 or under Article 227 of the Constitution can go intoGthe question of fact decided by the Labour Court or the Tribunal.But before going into such an exercise it is necessary that thewrit court must record reasons why it intends reconsidering afinding of fact. In the absence of any such defect in the order of H

the Labour Court the writ court will not enter into the realm offactual disputes and finding given thereon.…”

(Emphasis supplied)

29. On the conspectus of the decisions and material, we wouldhold as follows:

The jurisdiction to issue writ of certiorari is supervisoryand not appellate. The Court considering a writ application ofCertiorari will not don the cap of an Appellate Court. It will notreappreciate evidence. The Writ of Certiorari is intended tocorrect jurisdictional excesses. A writ of prohibition would issuewhen a Tribunal or authority has not yet concluded its proceedings.Once a decision is rendered by a body amenable to Certiorarijurisdiction, certiorari could be issued when a jurisdictional erroris clearly established. The jurisdictional error may be from failureto observe the limits of its jurisdiction. It may arise from theprocedure adopted by the body after validly assuming jurisdiction.It may act in violation of principles of natural justice. The bodywhose decision which comes under attack may decide a collateralfact which is also a jurisdictional fact and assume jurisdiction.Such a finding of fact is not immune from being interfered with bya Writ of Certiorari. As far as the finding of fact which is onewithin the jurisdiction of the court, it is ordinarily a matter ‘offbounds’ for the writ court. This is for the reason that a bodywhich has jurisdiction to decide the matter has the jurisdiction todecide it correctly or wrongly. It would become a mere error andthat too an error of fact. However, gross it may amount to, itdoes not amount to an error of law. An error of law which becomesvulnerable to judicial scrutiny by way of Certiorari must also beone which is apparent on the face of the record. As held by thisCourt in Hari Vishnu Kamath(supra), as to what constitutes anerror apparent on the face of the record, is a matter to be decidedby the court on the facts of each case. A finding of fact which isnot supported by any evidence would be perverse and in factwould constitute an error of law enabling the writ court to interfere.It is also to be noticed that if the overwhelming weight of theevidence does not support the finding, it would render the decisionamenable to certiorari jurisdiction. This would be the same as afinding which is wholly unwarranted by the evidence which is AB

C

DEFGH

316SUPREME COURT REPORTS

what this Court has laid down [See M/s. Perry and Co. Ltd(supra)].

A

THE APPLICATION UNDER SECTION 33A OF THE ACT

30. The applicants were NMR workers. They moved theapplication before the Labour Court alleging violation of Section 33(1)Bof the Act. Section 33 (1) of the Act, reads as follows:

“33(1) During the pendency of any conciliation proceeding beforea conciliation officer or a Board or of any proceeding before[ 2] anarbitrator or] a Labour Court or Tribunal or National Tribunal inrespect of an industrial dispute, no employer shall—C

(a) in regard to any matter connected with the dispute, alter, tothe prejudice of the workmen concerned in such dispute, theconditions of service applicable to them immediately beforethe commencement of such proceeding; or (b) for any misconduct connected with the dispute, dischargeor punish, whether by dismissal or otherwise, any workmenconcerned in such dispute, save with the express permission inwriting of the authority before which the proceeding ispending.”

D

31. Section 33A of the Act, reads as follows:E

“33A. Special provision for adjudication as to whether conditionsof service, etc., changed during pendency of proceeding.- Wherean employer contravenes the provisions of section 33 during thependency of proceedings before a conciliation officer, Board, anarbitrator, Labour Court, Tribunal or National Tribunal anyFemployee aggrieved by such contravention, may make a complaintin writing, in the prescribed manner,-

(a) to such conciliation officer or Board, and the conciliationofficer or Board shall take such complaint into account inmediating in, and promoting the settlement of, such industrialGdispute; and (b) to such arbitrator, Labour Court, Tribunal or National Tribunaland on receipt of such complaint, the arbitrator, Labour Court,Tribunal or National Tribunal, as the case may be, shall H

adjudicate upon the complaint as if it were a dispute referredto or pending before it, in accordance with the provisions ofthis Act and shall submit his or its award to the appropriateGovernment and the provisions of this Act shall applyaccordingly.”

32. We have noticed that there was a proceeding before the LabourCourt on the reference regarding the availability of certain benefits tothe NMR workers. It is during the pendency of the same that theapplicants alleged denial of employment. They alleged that in essence,they were duped into submitting applications as if they were intended tosecure the benefit of the VSS whereas they put their signatures on theblank papers not comprehending such use.

33. In this case, the case of the appellants is that Section 33 of theAct is not attracted as this is a case where the applicants voluntarilyapplied for getting benefit of the VSS. They were given the benefits.Section 33 of the Act has no application.

34. Learned senior counsel for the applicants, very fairly, submittedthat if it is found that the applications were made by the applicantsvoluntarily and they had claimed the benefits of the VSS, then, Section33, as such, may not apply. Therefore, the core issue to be decided is,whether applications were indeed filed by the applicants cognizant of itscontents and aware of its consequences.

THE PLEADING IN THE APPLICATION AND THE LAW

35. It is, inter alia, pleaded as follows:

“6. That the Hon’ble High Court of Orissa in OJC No.1527/91have passed an order to regularize all NMR workers those whohave completed 5 years of service or otherwise payment equalpay for equal work as their counter part in regular establishmentsare getting in the Rengali Hydro Power Project.”

36. There is reference to the matters, which were pending, whichwe have, inter alia, referred to. We must notice the further pleading inthe application filed by the applicants under Section 33A of the Act:

9. To defraud the workmen for regularization of theirservices, appropriate authorities have obtained their signaturesenmass on certain papers under the pretext of regularization of A

B

C

D

E

F

G

H

Aworkmen and by showing undue influence of regularization of theservice of the workmen that since the projects were temporaryand they were to be regularized in the Corporation in regular cadre,the old job will come to an end and new job in Corporation wouldstand afresh for which the workmen without understanding theimplication of application on plain faith with authority have signedBsuch applications. A fraud was practiced on the workmen andsuch change amounted to change service without leave of Tribunal,as such illegal. Change having been not voluntary, being actuatedwith fraud, action of the Management is in violation of Section 33of the Act and is in nullity. Opposite parties refused employmentCwhich amounts to retrenchment. This action is in clear violationof Section 33 of the Act.

37. Counter affidavit was filed. There is denial by the appellantsof the above contentions.D

38. Order VI Rule 4 of The Code of Civil Procedure, 1908(hereinafter referred to as ‘the CPC’, for short), reads as follows:

“In all cases in which the party pleading relies on anymisrepresentation, fraud, breach of trust, willful default, or undueEinfluence, and in all other cases in which particulars may benecessary beyond such as are exemplified in the forms aforesaid,particulars (with dates and items if necessary) shall be stated inthe pleading.”

39. Therefore, in a civil suit, if the plaintiff alleges fraud,Fmisrepresentation or undue influence, he is obliged to give particulars.An allegation of fraud is a matter of a grave nature. So is the allegationof undue influence and misrepresentation. The intention underlying OrderVI Rule 4 of the CPC is that the opposite party is to be put on sufficientnotice 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 theGbasic principle of justice that a party should be able to effectively meetthe case set up against him. What is fraud? Is it the same asmisrepresentation?

40. In The Indian Contract Act, 1872 (hereinafter referred to as‘the Contract Act’, for short), definition of “fraud”, is as follows:H

“17. ‘Fraud’ defined.—‘Fraud’ means and includes any of thefollowing acts committed by a party to a contract, or with hisconnivance, or by his agent, with intent to deceive another partythereto or his agent, or to induce him to enter into the contract:—

(1) the suggestion, as a fact, of that which is not true, by onewho does not believe it to be true;

(2) the active concealment of a fact by one having knowledgeor belief of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares tobe fraudulent. Explanation.—Mere silence as to factslikely to affect the willingness of a person to enter into acontract is not fraud, unless the circumstances of the caseare such that, regard being had to them, it is the duty of theperson keeping silence to speak2, or unless his silence, is, initself, equivalent to speech.

Explanation.-Mere silence as to facts likely to affectthe willingness of a person to enter into a contract is not fraud,unless the circumstances of the case are such that, regardbeing had to them, it is the duty of the person keeping silenceto speak, or unless his silence is, in itself, equivalent to speech.”

41. “Misrepresentation” is separately defined in Section 18 of theContract Act, as follows:

“18.”Misrepresentation” defined.— “Misrepresentation” meansand includes—

(1) the positive assertion, in a manner not warranted by theinformation of the person making it, of that which is nottrue, though he believes it to be true;

(2) any breach of duty which, without an intent to deceive, gainsan advantage of the person committing it, or any oneclaiming under him, by misleading another to his prejudice,or to the prejudice of any one claiming under him; A

B

C

D

E

F

G

A(3)causing, however innocently, a party to an agreement, tomake a mistake as to the substance of the thing which isthe subject of the agreement.”

42. Section 19 of the Contract Act declares that when consent toan agreement is caused by coercion, fraud or misrepresentation, theBagreement is voidable at the option of the person whose consent was socaused. The exception in Section 19, reads as follows:

“Exception—If such consent was caused by misrepresentationor by silence, fraudulent within the meaning of section 17, thecontract, nevertheless, is not voidable, if the party whose consentCwas so caused had the means of discovering the truth withordinary diligence.”

43. “Undue influence” is separately defined under Section 16 ofthe Contract Act, which reads as follows:

“16. ‘Undue influence’ defined.—(1) A contract is said to beDinduced by ‘undue influence’ where the relations subsistingbetween the parties are such that one of the parties is in a positionto dominate the will of the other and uses that position to obtain anunfair advantage over the other.

(2) In particular and without prejudice to the generality of theEforegoing principle, a person is deemed to be in a position todominate the will of another—

(a) where he holds a real or apparent authority over the other,or where he stands in a fiduciary relation to the other; or (b)where he makes a contract with a person whose mentalFcapacity is temporarily or permanently affected by reasonof age, illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will ofanother, enters into a contract with him, and the transactionappears, on the face of it or on the evidence adduced, to beGunconscionable, the burden of proving that such contract was notinduced by undue influence shall be upon the person in a positionto dominate the will of the other.

H

Nothing in the sub-section shall affect the provisions ofsection 111 of the Indian Evidence Act, 1872 (1 of 1872).”

44. A perusal of the definition of the word “fraud”, as defined inSection 17 of the Contract Act, would reveal that the concept of fraud isvery 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 contrastedwith Section 18(1) of the Contract Act which, inter alia, defines“misrepresentation”. It provides that it is misrepresentation if a positiveassertion is made by a person of that which is not true in a mannerwhich is not warranted by the information which he has. This is despitethe fact that he may believe it to be true.In other words, in fraud, theperson who makes an untruthful suggestion, does not himself believe itto be true. He knows it to be not true, yet he makes a suggestion of thefact as if it were true. In misrepresentation, on the other hand, the personmaking misrepresentation believes it to be true. But the law declares itto be misrepresentation on the basis of information which he had andwhat he believed to be true was not true. Therefore, the representationmade by him becomes a misrepresentation as it is a statement which isfound to be untrue. Fraud is committed if a person actively conceals afact, who either knows about the fact or believes in the existence of thefact. The concealment must be active. It is here that mere silence hasbeen explained in the Exception which would affect the decision of aperson who enters into a contract to be not fraud unless the circumstancesare such that it becomes his duty to speak. His silence itself may amountto speech. A person may make a promise without having any intention toperform it. It is fraud. The law further declares that any other act fittedto deceive, is fraud. So also, any act or omission, which the law declaresto be fraudulent, amounts to fraud. Running as a golden trend howeverand as a requirement of law through the various limbs of Section 17 ofthe Contract Act, is the element of deceit. A person who stands accusedof fraud be it in a civil or criminal action, must entertain an intention tocommit deception. Deception can embrace various forms and it is amatter to be judged on the facts of each case. It is, apparently, on accountof these serious circumstances that fraud has on a legal relationship or apurported legal relationship that the particulars and details of fraud isrequired if pleaded in a civil suit or a proceeding to which the CPCapplies.

AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

A45. We are here not concerned with a civil suit. The application inquestion has been filed under Section 33A of the Act. Section 11 (1) to(3) of the Act, read as follows:

“11. Procedure and powers of conciliation officers, Boards, Courtsand Tribunals.-(1) Subject to any rules that may be made in thisBbehalf, an arbitrator, a Board, Court, Labour Court, Tribunal orNational Tribunal shall follow such procedure as the arbitrator orother authority concerned may think fit.

(2) A conciliation officer or a member of a Board,[ 4] or Court orthe presiding officer of a Labour Court, Tribunal or NationalCTribunal may for the purpose of inquiry into any existing orapprehended industrial dispute, after giving reasonable notice, enterthe premises occupied by any establishment to which the disputerelates.

(3) Every Board, Court,Labour Court, Tribunal and NationalDTribunal] shall have the same powers as are vested in a CivilCourt under the Code of Civil Procedure, 1908 (5 of 1908 ), whentrying a suit, in respect of the following matters, namely:- (a)enforcing the attendance of any person and examininghim on oath; E

(b) compelling the production of documents and materialobjects;

(c) issuing commissions for the examination of witnesses; (d)in respect of such other matters as may be prescribed;and every inquiry or investigation by a Board,FCourt,[ 2] Labour Court, Tribunal or National Tribunal], shallbe deemed to be a judicial proceeding within the meaningof sections 193 and 228 of the Indian Penal Code (45 of1860).”

G

46. An application under Section 33A of the Act is not a civil suit.The provisions of Order VI Rule 4 of the CPC, as such, is not applicableto proceedings under the Act. Does it mean that the law as to pleadingsis not to apply at all to proceedings under the Act or will it be morecorrect to say that the law as to pleadings will apply but without its fullH

vigor. We would think the latter would be the correct position in law.While the provisions of the CPC may not apply the salutary principlesembodied 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 tomeet the case of his opponent to ready the evidence to be adduced andmarshal the law in support of its case.

47. In Management of Hindustan Steel Limited v. Workmen andothers8, the case arose under Section 25-FFF of the Act thereof and thenotice issued under the provision was impugned as being conditional.This is what this Court found in regard to the contention about thevagueness of the plea:

“13. In our view, Shri Setalvad was fully justified insubmitting that the management had been taken by surprise andthat the Tribunal was in error in holding the general ground in thewritten statement to cover the specific plea of infirmity of thenotice because of its being conditional. The plea of the statutorydefect in the notice should, in our opinion, have been reasonablyspecific and precise so as to enable the appellant to meet it. Thegeneral plea could not serve the object of putting the appellant onguard about the precise case to be met at the trial and tell themanagement the precise nature of the plea with respect to thedefect in the notice, to enable them to meet it.…”

48. In Bharat Iron Worksv. Bhagubhai Balubhai Patel9, again acase arose under Section 33 of the Act and is, therefore, close to thefacts of the case before us. Respondent/ employee complained ofvictimization and invoked Section 33 of the Act. This Court, apart fromholding that the Tribunal granting or withholding permission under Section33 of the Act does not sit as a Court of Appeal, administered the followingwords of caution in regard to pleading:

“9. A word of caution is necessary. Victimisation is a seriouscharge by an employee against an employer, and, therefore, itmust be properly and adequately pleaded giving all particularsupon which the charge is based to enable the employer to fullymeet them. The charge must not be vague or indefinite being as itis an amalgam of facts as well as inferences and attitudes. The 8 AIR 1973 SC 878

9 AIR 1976 SC 98

A

B

C

F

G

Afact that there is a union espousing the cause of the employees inlegitimate trade union activity and an employee is a member oractive office-bearer thereof, is, per se, no crucial instance.Collective bargaining being the order of the day in a democraticsocial welfare State, legitimate trade union activity which mustshun all kinds of physical threats, coercion or violence, must marchBwith a spirit of tolerance, understanding and grace in dealings onthe part of the employer. Such activity can flow in healthy channelonly on mutual cooperation between employer and employee andcannot be considered as irksome by the management in the bestinterest of the concern. Dialogues with representatives of a unionChelp striking a delicate balance in adjustment and settlement ofvarious contentious claims and issues.

A

10. The onus of establishing a plea of victimisation will beupon the person pleading it. Since a charge of victimisation is aserious matter reflecting, to a degree, upon the subjective attitudeDof the employer evidenced by acts and conduct, these have to beestablished by safe and sure evidence. Mere allegations, vaguesuggestions and insinuations are not enough. All particulars of thecharge brought out, if believed, must be weighed by the Tribunaland a conclusion should be reached on a totality of the evidenceproduced.”E 49. In regard to a case based on acquiescence, the High Court ofMadras has also spoken of the need for specific plea [See (1991), Labourand Industrial Cases, Page 40].

50. Applying the principles of law to the facts of our case, weFwould think that there is no sufficient pleading in regard to fraud. Theallegation as to undue influence is totally without any basis in the pleading.

51. The VSS, if availed of by an employee voluntarily, amounts toa contract. This Court, in Bank of India and othersv. O.P. Swarnakarand others10, was dealing with the case of voluntary retirement schemeGfloated by the bank. A question arose as to whether the scheme was anoffer or an invitation to treat. After elaborate consideration of the scheme,the Court took the view that having regard to the facts, in particular, thefact 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 theapplication was accepted by the bank. It was only when the offer of theemployee was accepted, it became an enforceable contract, it was held.This aspect assumes significance in the light of the fact that the conceptof fraud, undue influence and misrepresentation as defined in the ContractAct, would be apposite in the context of the Scheme giving rise to anenforceable contract.

THE EVIDENCE BEFORE THE LABOUR COURT

52. Now, the time is ripe to look at the material which has beenproduced before the Labour Court by the parties. On the side of theapplicants, 90 in number, 4 witnesses were examined. The first witnessis Giridhari Sahu-the First Applicant. He states, inter alia, as follows:

He is one of the applicants. There are 89 other applicationswith him praying for the same relief. He was working in theMaintenance Division. Others were working in other Divisions.He was working since 03.06.1988. He was refused employmentsince 13.06.2000. Reference is made to the order passed in O.J.C.No. 2420 of 1989 which we have referred to. Appellants did notcomply with the directions of the High Court. It was stated thatthe Civil Appeal is pending in this Court. A regulation was maderegulating the regularization of the NMRs who had completedfive years of service. After formation of the Corporation, theappellants introduced the Scheme. AW1 and other applicants weregiven to understand that their services will be regularized andsignatures taken in the VSS form. There was no decision in themeeting regarding the VSS in the Union. Signatures of the witnessand other applicants were taken by the appellants forcibly givingan impression that their services will be regularized. They protested.The reference, which we have adverted to, is pending. Theconditions of service had been changed.In the cross-examination,AW1 would state that he has not been issued with any appointmentletter by the time he joined in service. 327 persons, including AW1,were working during his tenure. He denied that he, along withother applicants, signed in the Scheme. He stated it that it is not afact that he had given the application in the Scheme out of hisown without any compulsion or force. So also the other applicants.

AB

C

DEF

G

A

B

C

D

E

F

G

H

AW2 is one Chirtamani Patra. He joined from 04.05.1987and till 13.06.2000, he worked continuously. The appellants gavethem the impression that their services will be regularized and, atfirst instance, their signature was taken on a blank paper andsubsequently in a form. Subsequently, he could know that the formwas meant for VSS. Prior to taking signatures in the VSS form,no intimation or no notice was given regarding the VSS. He haddrawn attention to the authorities regarding taking of his signaturesin the VSS application form. The signatures were obtained at theDivisional level.In the cross-examination, he, inter alia, statedthat more than 300 persons were engaged as NMR at that time.He had no knowledge about the VSS prior to his refusal ofemployment.He denied that the VSS was sufficiently publishedand he submitted his application for VSS. He also stated that itwas not a fact that signatures of the applicants were not takenforcibly 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 similarway, signatures of all the applicants were taken.VSS was notpublished in the notice board or circulated among the workersprior to taking their signatures. The VSS was not published in anylocal newspaper. In the cross-examination, he, inter alia, statesthat it is not a fact that he, along with other applicants, signed inthe VSS form knowing the consequences. He further stands byhis case in the chief.

AW4 joined on 06.03.1984. He was refused employmenton 14.06.2000 along with others. Their signature was taken in anapplication and three to four blank papers.They were given tounderstand that their services will be regularized. Subsequently,they came to know about the application that the application theysigned was a VSS form. He says in cross-examination that to hisknowledge, the VSS was not published on the notice board. Hefurther says he does not know if any settlement was made withany Union or not by the management. The Executive Engineerand HRD and others compelled him and others to sign. He has not intimated the concerned Chief Engineer.The application, inwhich his signature was taken, was dated 31.05.2000. About 15days thereafter, he got the amount in bank draft. About 3-4 daysafter 31.05.2000, he raised objection and protested against theVSS. After protest, they received the money from themanagement.

(Emphasis supplied)

EVIDENCE FOR THE APPELLANTS

ORAL EVIDENCE

53. OPW1, the Management Witness No.1, would state as follows:

Out of the 336 NMRs, 256 NMRs accepted the VSS. TheManagement has neither terminated nor retrenched the workers.The applicants voluntarily separated themselves by accepting theVSS. Exhibit ‘A’ is produced as the Notification dated 27.04.2000constituting the Recommending Committee. Exhibit ‘B Series’were marked as the applications. Exhibit ‘C Series’ are theacceptances of the applications. Exhibit ‘D’ is the Orderauthorizing AGM, HRD Shri A.K. Mitra to accept the application.Exhibit ‘E Series’ are the payment sheets showing the paymentof 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 weregiven VSS in December, 1999. Exhibit ‘A/I’ is the Notificationextending the VSS till 24.06.2000. Exhibit ‘A/II’ is the Notificationextending the VSS till 01.03.2001. Discussion was made withRengali Power Projects Workers Union before implementing theVSS on 10.04.2000 AND 14/15.04.2000. The President had giventhe agenda for discussion vide Exhibit ‘F’ including VRS for NMRemployees. Finally, discussion was held on 20.05.2000 as perExhibit ‘G’ (marked with objection). The Union was aware of theimplementation of the VSS prior to the implementation. Thewitnesses have signed in Exhibit ‘E Series’. Exhibit ‘H’ is theguideline issued by the Corporate Office. The suggestion thatsignatures of the applicants have been taken forcibly, has beendenied. An amount of Rs.5,500/- paid to the applicants as ex gratiatowards the enhanced medical allowance and hydro allowance.

AB

C

DE

F

G

H

A

B

C

D

E

F

G

H

In the cross-examination, the witness would state, inter alia,as follows:

The Executive Engineer is the appointing authority so faras NMR workers were concerned. The VSS was introduced inall the units of the Corporation in the State. The Scheme was notnotified in the Gazette by the Government or by the Corporation.There was no request from the side of the applicants to implementthe VSS or VRS nor there was any proposal from the RengaliHead to reduce the number of NMRs by implementing the VSS.To reduce extra manpower, the VSS was introduced. The Schemewas not published in any newspaper for the general public.Witnessstates that he does not know the applicants personally. He did notsay which applicant was paid how much wages. He cannot saywithout referring to the application and acceptance letter, fromwhich date the applications were accepted. In Exhibit ‘G’, neitherShri R.C. Kuntia nor Shri D.N. Padhi has signed although theirnames are there. He does not know the witnesses who had signedin the applications in B Series. All the applicants signed in thepresence of the Executive Engineer, in Exhibit B series. Then, heagain says, he cannot say in whose presence the applicants signedin Exhibit B Series. He cannot say who has given the applicationform to the applicants in Exhibit B Series. He denies that signaturesof the applicants were obtained forcibly.

OPW2-Management Witness No.2, is the Manager of aDivision. He joined as Manager on 16.04.2002. Prior to this, hewas working as the Deputy Manager with the Corporation. Whilehe was working as SDO, 63 NMRs were working under him. Tohis knowledge, now, 21 NMRs were working under the appellants.Other 42 persons have separated themselves by obtaining VSS.By the time the VSS was introduced. The objective of the Schemewas widely circulated. The applicant took the application formfor VSS after signing on a sheet of paper.

He states it to be incorrect that signatures were takenforcibly.

In cross-examination, he states as follows:

He came to Rengali in the year 1999. He has no personalacquaintance with the 42 applicants. He cannot say if any high- level discussion was made or not. The information was notifiedAon the office board. The VSS Notification was made in English.All the NMRs were not conversant with English. The Notificationwas not published in Oriya. The condition of VSS was incorporatedin the application form and the applicants and other NMRs werenot given the Scheme for their information separately.At present,Bhe cannot say as to from which date applicants started receivingapplication forms. He has not assisted the applicants in filing theapplication form. He can identify witnesses who have signed theapplication form of the applicants. Then, he says, he cannot saywho is Sahdev Raut, in what capacity he had signed.Below thesignature of the witnesses, their designation and date have notCbeen given. He has no knowledge about the pendency of the casein the Supreme Court. He has no knowledge about the withdrawalof the application by AW1. He says, it is not a fact that thesignatures of the applicants were taken forcibly giving impressionthat their services will be regularized.

A

D

THE DOCUMENTARY EVIDENCE

54. The documentary evidence, which is produced by theapplicants, is as follows:

E

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 of1989, which we have already adverted to; F

c.The letter written by the first applicant dated 01.06.2000, whichwe have already extracted; d.The Gazette Notification dated 01.04.1996 regarding changeover from the Government.

55. As far as documentary evidence of the appellants is concerned,they are as follows:

G

Exhibit ‘A’ is the Notification dated 27.04.2000 constituting theRecommending Committee. It also contains the Scheme itself.Exhibit ‘A/I’ is the Notification dated 17.06.2000 indicating thatthe VSS will be enforced for a period of six days from 19.06.2000

H

Ato 24.06.2000. Exhibit ‘A/II’ is the Notification dated 28.01.2001indicating that the VSS will be enforced for a period of one monthfrom 30.01.2001 to 01.03.2001. Exhibit ‘B Series’ are theapplications made by the applicants. Exhibit ‘C’ is acceptance ofthe VSS application which is seen marked with objection. Exhibit‘D’ is the order authorizing the AGM to accept the applications.BExhibit ‘E Series’ are the payment sheets showing payment ofthe legal dues and ex gratia in account payee cheques. Exhibit‘F’ is letter dated 15.04.2000 by the President of the Union seekingdiscussion, inter alia, about enhanced amount of VRS by NMRemployees. Exhibit ‘G’ purports to be the Minutes of theCDiscussion held between the Management and the Union on20.05.2000 (marked with objection). Exhibit ‘H’ is again letterdated 27.04.2000 containing points for facilitating the smoothimplementation of the Scheme. Exhibit ‘J’ purports to be theacknowledgment of VSS of NMR employees, Sub-Division II.Exhibit ‘K’ purports to be the Office Order dated 13.06.2000Drelieving the applicants.

FINDINGS OF THE LABOUR COURT

56. The Labour Court found that the application under Section33A of the Act is maintainable. This is on the basis that, had the VSSEbeen in the true sense, there would not have been any illegality. It isfound that the applicants have challenged the Scheme as illegal and theapplications were obtained by misrepresentation. On that basis, it wasfound that the application was maintainable. Thereafter, the Labour Courtgoes through the evidence and has recorded the following findings:F“9. I have gone through the evidence of witnesses F“9. I have gone through the evidence of witnessesexamined on either side so also the documents exhibited. Therewas no demand from the side of the complainants nor there wasany proposal from the side of the officials for introduction ofVoluntary Separation Scheme or Voluntary Retirement Scheme.Similarly the SDO and the Executive Engineer of OHPC haveGnever recommended for reducing the staff strength. AdmittedlyVoluntary Separation Scheme was not published widely for theinformation of NMRs and therefore it cannot be exported that theNMRs signed the Voluntary Separation Scheme applicationsknowing its content and consequences. On a reference to Ext.3 itHis clear that A.W.1 though submitted application for Voluntary Separation Scheme either under pressure or under a wrong notionhe has withdrawn the same on 1.6.2000 but the application of SriSahoo was not returned back and he was given the VoluntarySeparation Scheme. Therefore I am of the considered view thatthe Voluntary Separation Scheme was not the choice of thecomplainants but it was thrust upon the complainants and thereforeamounts to refused of employment to the guise of VoluntarySeparation Scheme.

10. In view of the discussions made above, the action ofthe management opposite parties in implementing the VoluntarySeparation Scheme forcibly or by misrepresentation is illegal andunjustified. The complainants are entitled to be reinstated in serviceand are deemed to be continuing in service from the date of theVoluntary Separation Scheme was implemented. The managementopposite parties have paid certain amount to the complainantsbeing the benefits under Voluntary Separation Scheme. Thecomplainants will be eligible to get 70% (seventy percent) backwages and the amount already paid by the management to thecomplainants towards the Voluntary Separation Scheme benefitshall be adjusted. The Award shall be implemented by the oppositeparties within one month from the date of its Notification forpublication.”

57. The substance of the findings is contained in paragraph-9(extracted above). It is found that there was no demand from theapplicants. There was no proposal from the officials for introduction ofthe Scheme. The SDO and the Executive Engineer of the Corporationnever recommended for reducing staff strength. Admittedly, the Schemewas not published widely for the information of NMRs. Reference ismade to the application made by AW1, which we have extracted. Onthis finding, the Labour Court finds that the Scheme was not the choiceof the applicants but it was thrust upon the applicants. This amounted torefusal of employment in the guise of the Scheme. On this basis, therelief was granted. The relief consisted of directing reinstatement inservice and the applicants were deemed to be working continuously inservice from the date of the Scheme being implemented. Noticing thatcertain amounts had been paid to the applicants and directing that theapplicants would get 70 per cent of the back-wages, the amounts weredirected to be adjusted.

A

B

C

D

E

F

G

H

58. It may be necessary to notice one development which tookplace in the High Court. In the High Court, when application was madeunder Section 17B of the Act, the applicants were directed to depositthe amount which they received. 28 applicants deposited the amountwhich they received under the Scheme. It is not disputed that the saidamounts are with the appellants.

A

B

THE JUDGMENT IN O.J.C. NO. 2420

59. In the first place, we must notice the judgment of the HighCourt of Orissa rendered in O.J.C. No. 2420 of 1989. In the same, theCourt, inter alia, held as follows:

C

“The petitioner represents a large number of N.M.Rs.who were employed in Rengali Hydro Electric Project and thelike projects. Presently, they are under the Energy Department ofthe Government of Orissa. The prayer of the petitioner union is todirect the opposite parties to regularize the services of the N.M.R.employees and to pay them emoluments equal to those of regularemployees discharging the same nature of work.

D

We need not traverse the legal ground as the same hasbeen duly taken note of in a recent decision of this court in BalaramSahu-v-State of Orissa, 74(1992) CLT 367 and following whatEwas stated in that judgment the facts of the two cases being similar.We direct regularization of those members of the union who haveserved continuously for a period of five years by today. Theopposite parties shall find out with reference to Annexure-7 orany other document available to them as to which of the members-of the petitionerunion have completed five years of continuousFservice by today. It may be pointed out here that in Annexure-7,details have been given about 281 (though the last serial numberis 280 in Annexure-7, Shri Das states that sl. No. 114 wasmentioned twice by mistake) persons. Learned counsel states thatdetails of 85 workmen represented by the petitioner-union whohave been transferred to different divisions could not be madeGavailable to the court. …”

G

60. The court went on, no doubt, to consider the pay to be given tothe NMR workers. The court proceeded to hold “there was no reason H

G.M., ELECTRICAL RENGALI HYDRO ELECTRIC PROJECT,ORISSA v. SRI GIRIDHARI SAHU [K. M. JOSEPH, J.]

for discriminating the NMR employees from other regular employedpersons”.

THE JUDGMENT IN CIVIL APPEAL NOS.7342-7343 OF 1993

61. The Civil Appeal, which was carried against the same, wasfinally decided by this Court in State of Orissa and othersv. BalaramSahu and others11. The judgment was rendered on 29.10.2002. Fromthe perusal of the said judgment, we find that this Court did not deem itfit to interfere with the judgment of the High Court as such. This is whatthis Court said:

“14. For all the reasons stated above, the appeals are allowed andthe orders of the High Court are set aside insofar as the pay equalto that of the regular employed staff has been ordered to be given-to the NMR/dailywager/casual workers, as indicated above, towhich they will not be eligible or entitled,till they are regularizedand taken as the permanent members of the establishment. Forthe period prior to such permanent status/regularization, they wouldbe entitled to be paid only at the rate of the minimum wagesprescribed or notified, if it is more than what they were being paidas ordered by this Court in Jasmer Singh case [(1996) 11 SCC77 : 1997 SCC (L&S) 210]. There will be no order as to costs.”

62. Thus, the judgment, insofar as it related to the direction toregularize the members of the writ petitioners’ union, became final on29.10.2002.

63. The judgement of the High Court was dated 28.10.1992. Thus,we proceed on the basis, therefore, that the applicants, were membersof the writ petitioners’ union in O.J.C. No. 2420 of 1989, who becameentitled under the judgment of the High Court which was affirmed bythis Court as regards the direction for regularization provided they hadserved continuously for a period of five years as on 28.10.1992, i.e., thedate of the judgment of the High Court.

64. According to the learned counsel for the appellants, in fact, aScheme was floated to effectuate regularization as ordered by the court.It appears to be their case that the appellants also floated the VSS.

A

B

C

D

E

F

G

H

A65. Going by the judgment of the High Court in O.J.C. No.2420of 1989, those members of the writ petitioners’ union who servedcontinuously for a period of five years till 28.10.1992 (date of judgment)were entitled to regularization as the High Court had directedregularization. They had indeed acquired a legal right. This wasundoubtedly subject to the lis pending in this Court. A period of fiveByears continuous service prior to 28.10.1992 would mean those employeeswho were members of the writ petitioners’ union before the High Courtin O.J.C. No. 2420 of 1989, would be employees who were appointedon or before 27.10.1987. In fact, going by the deposition of applicants, itwould appear that AW1 claimed to be working since 1988. This meansCAW1 apparently was not one who was covered by the direction forregularization by the High Court as he was working from 03.06.1988.He would complete five years only by 02.06.1993. Though, in theapplication, 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 toAW4, going by the dates given, which we have already indicated, if theyDhad worked continuously from the dates, they would be covered by theorder of the High Court for regularization. We are considering the VSSwhich was introduced during the pendency of the litigation before thisCourt. This means that while they had acquired a right under the directionof the High Court, the sword of Damocles over-hanged them in theEform of the uncertainty confronting them as the direction in their favourcould be either confirmed or overturned by this Court.

66. In other words, the direction in their favour had not becomefinal. We have stated this only to highlight that if the VSS was floatedand it was found sufficiently attractive, it would not be unnatural forFthem or unfair to them to take advantage of the same. In this regard, theappellants have projected before us that out of the 281 NMRs andContingent Khalasis who opted for the Scheme, the Corporation acceptedthe applications for 271 workers. It is only the 90 applicants, it is pointedout, who have made a somersault and sought to resile from the applicationswhich were made by them.G

67. The application under section 33A of the Act was filed afterseveral months from the date of receiving the ex gratia payment. It isalso the case of the appellants that there was a letter from the Presidentof the Workers’ Union of 15.04.2000, which was before the circulationof the Scheme, requesting for enhancing the amount for VRS for theH

NMR workers. There are Minutes of the discussion held on 20.05.2000between the Management and the representatives of the Union. TheMinutes indicate that the issue relating to the VSS, which was taken upfor discussion, was – “(1) Enhanced amount of VSS for the NMRemployees”.

68. It may be true that the Notification dated 27.04.2000 waspublished in English. So were the further Notifications dated 17.06.2000and 28.01.2000.

69. There is no dispute that the applicants have been favouredwith an amount of Rs.1,25,000/- which is the amount which iscontemplated under the Scheme besides other amounts. These amountshave been paid by cheques into the accounts of the applicants. Theapplications which have been produced before us appear to be witnessedby two witnesses. This is as per the terms of the Notification whichcontemplates that the application must be signed by two witnesses. Soalso, in regard to the payments which are effected, the authorizationappears to be supported by the signatures of two witnesses.

70. No doubt, as far as this aspect is concerned, the applicants donot dispute that they have received the payments. In fact, they will notbe in a position to establish that they have not received the payments.They would brush aside the payments on the basis that they were paidsome amounts which they thought they were entitled to on the basis thatthey were being regularized. A sum of Rs.1,25,000/- plus other benefitswas paid to all the applicants. This amount happens to be also the amountwhich was contemplated under the VSS.

71. None of the applicants have a case that the signatures in theapplications have not been appended by them. They do not appear tohave a case about the witnesses as such except as we have noticed inthe evidence. It may be true that one applicant out of the 90 has writtena letter purporting to withdraw. It is noteworthy that other 89 applicantshad not made any application seeking to withdraw. In the applicationfiled by one worker (First Applicant), which we have extracted, he wouldstate that he was threatened and coerced and, being afraid, he wasmade to sign the application for VSS against his wish. He never intendedto 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 nextdate of the making of his application. It may be remembered that AW1

A

BC

D

E

F

G

H

Awas not a person who was entitled even to the benefit of the orderpassed by the High Court as he had not completed five years as on thedate of the judgment. There can be no similarity between a case ofthreat or coercion on the one hand and fraud.

72. The manner in which fraud was perpetuated, the exact natureBof 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 firstapplicant is concerned, the prevarication in his case is palpable anddiscernible from the somersault that he carried out in the pleading in theapplication in comparison with his case in the letter, which he wroteseeking to withdraw from the Scheme, on 01.06.2000, wherein the caseCwas built around alleged threat and coercion. It may be noticed thatcoercion is another element which is antithetical to free consent and isseparately dealt with under Section 15 of the Contract Act. He mincesno words after employing the expression “threat, coercion”, when hedeclared that being afraid, he was made to sign the VSS against hisDwish. He was threatened with being forced into dire straits unless hesigns the application. Conspicuous by its absence, in his letter dated01.06.2000, is even the faintest whisper about fraud of any kind. This isthe application dated 01.06.2000. It must be noted it is on the very nextday after he made the application claiming the VSS on 31.05.2000. Theapplication under Section 33A of the Act, on the other hand, came to beEfiled much later, i.e., on 19.04.2001, after several months. In the pleading,in paragraph-9 of the application, as to who defrauded amongst theauthorities, is not pleaded. It must be noted that the persons arrayed inthe application are the General Manager (Electrical); Manager(Electrical); Maintenance Division; Manager (Electrical), Protection andFControl Division; Director (HRD) of the Corporation. It is not evenmentioned as to who amongst them committed the alleged act of fraud.No doubt, the fraud could be committed by either the opposite parties oranyone action at their behest. If so, it should have been pleaded. Thereis no such plea forthcoming. The substance of the plea is that forregularization, which we gather, on a liberal reading of the application,Gbeing one under the Act and bearing in mind also the need to be not fartoo strict, enmass signatures of workers were taken on certain papersand by showing undue influence. The pleas of fraud and undue influenceare distinct and separate. It will be noticed that the case of coercion andthreat does not make its appearance in the pleading.H

73. Coming to the oral evidence, AW1, as noticed by us, statesthat he and other applicantswere given to understand that their serviceswill be regularised and signatures were taken on the VSS form. Hefurther says that his signatures and that of the other applicants weretaken by appellants forcibly giving an impressionthat their services willberegularised. As has been noticed by us, there is no case of force-which is used in paragraph9 of the application, which constitutes thesole pleading.

74. Passing in to AW2, he would say that the appellants gavethem an impression that their services would be regularised and, at thefirst instance, their signature was taken on a blank paper and subsequentlyon a form. Subsequently, he came to know that it is meant for the Schemeand he drew attention of the authorities (There is no mention about beforewhom he ventilated his objection. No written document is forthcoming).He would state that the signatures were obtained at the Divisional Levelgiving the same impression.In cross, he says he has no knowledge aboutVSS prior to his refusal of employment. It is further stated that it is nota fact that the signatures of the applicants were not taken forcibly andfraudulently by the appellants. This is about all that AW2 has to say. Theinconsistency between “fraudulently” and “forcibly” is self-evident and“forcibly” is not vaguely pleaded.

75. AW 3 would state that with the instigation of the higherauthorities, their signatures in the VSS were taken forcibly. In the similarway, the signatures of all the applicants were taken.No doubt, he speaksabout the notice not being published nor it being circulated amongst theworkers. It was not published in any local newspaper. In cross-examination, he would state that it is not a fact that he and other applicantswere not refused employment forcibly nor the condition of servicechanged. On conspectus of his evidence, his deposition is only to theeffect that the application of AW3 and other applicants were securedforcibly. This is completely incompatible with the case of fraud which ispleaded and there is no pleading for force being used as we have noticed.

76. Coming to the last witness AW4, he would state that theirsignature was taken on an application and three to four blank papers.They were given to understand that their services would be regularised.But in cross-examination, he would state that the Executive Engineerand HR have compelled him and others to sign.The complete A

B

C

D

G

H

Aprevarication is palpable and does not require any elucidation. This wouldqualify as a case where the pleading does not match up to therequirements of the case. The state of the evidence, which is adduced,makes matters even worse.

77. A perusal of the documentary evidence, produced by theBapplicants, would show that they have nothing to do about establishingthe case set up by the applicants. On the other hand, the protest letterdated 01.06.2000 sent by the first applicant completely demolishes thecase as pleaded in the application. It is noteworthy that apart from thefirst applicant, none of the 89 other applicants have registered their protestabout the VSS. Though there is mention about a letter sent to theCConciliation Officer, it is not brought on record.

78. As against this, the appellants have produced a wealth ofdocumentary evidence before the Labour Court. Exhibits ‘A’ to ‘K’ wereproduced. They included the applications which were signed by theapplicants and two witnesses; the VSS Scheme itself; the documentDevidencing the authorisation of payments of the amounts under the VSSScheme; the Charter of Demand before the Management for discussion-Exhibit ‘F’. The Minutes of the Discussion of the meeting which washeld on 20.05.2000. The Minutes would indicate that regularisation of 43NMR workers out of total of 343 was to be considered in terms of theEScheme for regularisation of the NMR workers after the VSS/VRSScheme, is implemented in respect of 300 workers. This is item no.1.The next item no.2 dealt with enhanced amount of VSS for NMRemployees. After a detailed discussion, it was mutually decided that thiswas not possible.79. Item nos. 3 and 4 would show that it was decided that 43FNMR 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 allthe employees of the writ petitioners’ union, the matters stood challengedGbefore this Court in Civil Appeal and as on date when VSS Scheme wasfloated and the regularisation scheme also was enforced, this Court hadnot yet rendered its judgment. Upholding the direction to regularise, thedecision 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 yardstickH

of it being a case of no evidence, the Award became infirm and wasliable to be interfered with. At any rate, the findings, which have beenrendered by the Labour Court, which is to the effect that it was not thechoice of the applicants and was thrust upon the complainants amountingto refusal of employment, is completely insupportable both in law and onfacts. The finding that there was no demand from the side of thecomplainants for the introduction of the VSS is completely irrelevant, as,as an employer, it was certainly open to devise such policy which was inthe best interest of the Corporation. Validity of the Scheme did not dependupon the Scheme having its origin in a demand by the workmen. Thefinding that there was no proposal for the Scheme or recommendationfor reducing the staff strength was wholly irrelevant. It is the factum ofthe Scheme being propounded, in fact and implemented elsewhere aswell, which should have been considered by the Labour Court.

82. We noticed that in paragraph-9 of the application after statingabout getting the signatures enmass on certain papers under the pretextof regularisation and by showing undue influence of regularisation thatsince the projects were temporary and they are to be regularised in theCorporation in regular cadre, the old job will come to an end and a newjob in the Corporation would start afresh for which workmen withoutunderstanding the implication of the application, have signed on suchapplication. From the evidence which consists of the testimony of AW1to AW4, as far as this aspect is concerned, there is no evidence at all.Itis true, in the response of the appellants, it has been pleaded in paragraph-8 that a Scheme has been displayed on the notice board and the samehas been widely circulated for information of all concerned. However,the witness for the appellants, in evidence, has deposed that the VSSwas not published in any newspaper. It is stated that it is not published inany newspaper for the information of the general public. He also doessay that it is not notified in the Gazette either by the Government or bythe Corporation. The second witness for the appellants also states thatimplementation was notified on the Office Notice Board. It was made inEnglish and the NMRs were not conversant with English. Nothing waspublished in Oriya. We have also undoubtedly taken note of the depositionof AW1 to AW4 which appears to project the case of non-publication ofthe Scheme. In this regard, we must notice the following features:

1. The applicants themselves lay store by the judgment of theHigh Court in the earlier Writ Petition O.J.C. No.2420 of 1989.

A

B

C

D

E

F

G

H

340SUPREME COURT REPORTS

ATherein, the petitioner was the Rengali Power ProjectsWorkers’ Union.

2. Apparently, the applicants claimed to be members of the saidUnion. AW1, in fact, in his deposition, also refers to the orderpassed in O.J.C. No. 2420 of 1989 and that the appellants didBnot comply with the direction of the High Court and appeal ispending in this Court. Therefore, applicants must be understoodas being members of the Union. They must also be treated asaware of the pendency of the civil appeal in this Court.

83. It is pertinent to note, in this regard that there is evidenceC(OPW1), to show that before implementation of the VSS, discussiontook 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 theChairman-cum-Managing Director of the appellant-Corporation that hestood elected as the President of the Union. They had some importantproblems to be discussed with the Management. He requested for aDdate and time to discuss the problems. Under the heading “Agenda ofthe Discussion”, Item No.2 was “Enhance the amount of VRS for theNMR employees”. This document was, in fact, marked without anyobjection through OPW1. The discussions took place on 20.05.2000.Item no.2 was about enhancing amount of VSS for NMR workers. ItEwas decided, after a detailed discussion that it was not possible. Therefore,the only finding possible is that the Union to which the applicants belonged,wanted the VSS amount to be enhanced. This aspect has not beenconsidered at all by the Labour Court. It is true that the document wasmarked as Exhibit ‘G’ with objection. In the cross-examination of thewitness, through whom Exhibit ‘G’ was marked, there is no suggestionFthat such a discussion did not take place or the discussion did not relateto the enhanced payment under the VSS. But it is true that OPW1 admitsthat in Exhibit ‘G’, the two Office Bearers have not signed though theirnames are appearing. However, there is no cross-examination aboutdiscussion taking place prior to implementation. Therefore, this would,Gat 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 weremisled or defrauded by their own Union Leaders. A perusal of the Awardwould show that apart from stating that Exhibits ‘A’ to ‘K’ were markedon behalf of the appellants and Exhibits ‘1’ to ‘4’ were marked on behalf H

of the applicants, there is no discussion about these documents at all.Thus, this is a case where documentary evidence adduced by appellantsis ignored by the Labour Court.

84. The finding that it cannot be accepted that the NMRs signedknowing its contents and consequences, amounts to nothing short of aperverse finding. The pleading and the evidence, does not support in theleast, such a finding. On the other hand, the weight of evidence shouldhave been borne in mind by the Labour Court as completely eliminatingthe possibility. It is surprising that the Labour Court should find solace inthe letter written by the first applicant dated 01.06.2000 to find that hesubmitted the application eitherunder pressureor under wrong notion.In fact, the very concept of wrong notion is missing in the letter dated01.06.2000(See paragraph 17 for the letter). The Labour Court appearsto be oblivious also to the fact that there is only one such letter. Eventaking it at its face value, there is no letter written by any of the other 89applicants. The Labour Court also lost sight of the fact that the applicantswere favoured with amounts under the Scheme. By way of cheque theamounts stood credited in their accounts. The application is moved onlyafter several months of receiving the benefits.

85. We are, therefore, of the clear view that no case was madeout before the Labour Court for invoking Section 33A read with Section33 of the Act. In the case of Writ of Certiorari, no doubt, the Court alsobears in mind that it is not axiomatic, or that upon a finding of illegality, acourt is bound to interfere. The court may still exercise its discretion anddecline jurisdiction unless there is manifest injustice. Bearing in mindthis principle also, we are inclined to think that the appellants have madeout a case of manifest injustice if the Award is allowed to stand. Largesums were spent by a Public Sector Corporation in seeking to trim itswork force. The workers voluntarily on our finding, accepting the termsof the Scheme, receiving the benefits, thereunder, and got separated.Implementing the Award would mean reinstatement of the workers andthat too with 70 per cent back-wages, when there was absolutely nowarrant for the same.

86. There is only one aspect which remains. During the pendencyof the Writ Petition filed by the appellants in the High Court, 28 applicantsdeposited the amount which they have received from the appellants sothat application under Section 17B of the Act could be pursued. This AB

C

D

E

F

G

H

Aamount must be directed to be returned to the concerned workmen whohad made the deposit and we also feel that the amount should be returnedwith interest.

87. Accordingly, the appeal is allowed and the judgment of theHigh Court is set aside. The Award passed by the Labour Court is setBaside and the application filed by the applicants is dismissed. However,the appellants will return the entire amount deposited with them by the28 applicants with interest at the rate of 8 per cent per annum from thedate of deposit till the date of payment. The amount shall be returnedback with interest as above to the applicants concerned within a periodof two months form the date of receipt of copy of this judgment.C

88. There shall be no order as to costs.

Kalpana K. Tripathy

Appeal allowed.

D

E

F

G

H