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REPORTABLE    

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO. 8071 OF 2010  

GENERAL MANAGER, ELECTRICAL  

RENGALI HYDRO ELECTRIC PROJECT,  

ORISSA AND OTHERS       ... APPELLANT(S)  

VERSUS  

SRI GIRIDHARI SAHU AND OTHERS      ... RESPONDENT(S)  

J U D G M E N T  

K.M. JOSEPH, J.  

1. This appeal by special leave is directed against  

judgment of the High Court of Orissa dismissing the Writ  

Application filed under Articles 226 and 227 of the  

Constitution of India by the appellant. What was called in  

question before the High Court was the Award passed by the  

Labour Court, Bhubaneswar.

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2. By the impugned order, the High Court had dismissed the  

Writ Application and confirmed the Award. The award was  

passed on an application filed under Section 33A of the  

Industrial Disputes Act, 1947 (hereinafter referred to as  

‘the Act’, for short) by 90 workers of the appellant, the  

respondents herein who shall be referred as the applicants.  

3. On 28.10.1992, the High Court, in Writ Petition O.J.C.  

No. 2420 of 1989, held that the NMR workers in the Rengali  

Hydro Electric Project (RHEP) who had worked continuously  

for a period of five years on the date of the judgment, were  

entitled for regularization. They were found entitled to  

same pay as regular employees. The appellants challenged  

the same by a Special Leave Petition which was converted  

to Civil Appeal Nos.7342-7343 of 1993.  

4. In short, the case of the applicants (who were NMR  

workers in the Rengali Unit) before the Labour Court was  

that a reference had been made to the Labour Court dated  

02.07.1999 for adjudicating disputes between the  

appellants-Management and its workmen. Issues were

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essentially whether NMR workers were entitled to payment  

of Hydro Allowance at revised rates. The further issue was,  

whether NMR workers of the Rengali Unit of the Orissa Hydro  

Power Corporation, who were being paid medical allowance,  

were entitled for such allowance at revised rates.  

5. The further case of the applicants, who were NMR  

workers in the Application under Section 33A of the Act,  

was that they had signed certain papers on the basis that  

it was necessary for their being regularized but as it  

turned out, it was used as if they were Applications for  

claiming the benefit of a Voluntary Separation Scheme  

(hereinafter referred to as ‘VSS’ for short). They were  

prevented from discharging their duties. They came to know  

about the deception practiced. This led to the application  

under Section 33A of the Act.  

6. The Labour Court found that the VSS was thrust upon the  

applicants and there was no publicity and allowed the  

application and directed reinstatement with 70 per cent  

back-wages which was directed to be adjusted towards  

payments made to the applicants.

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7. The High Court noticed that an industrial dispute was  

pending, as noticed by us earlier. It took note of the fact  

that the Labour Court has proceeded to find that the VSS  

had not been published widely for the information of the  

NMR workers, and therefore, it would not be accepted that  

the NMR workers signed the applications knowing its  

contents and consequences. It was found inter alia further  

that the Award was passed on appreciating the oral and  

documentary evidence produced before the Labour Court.  

Noticing what was invoked before the High Court was  

Certiorari jurisdiction and that a writ can be issued only  

in exercise of the supervisory jurisdiction and finding  

that there was no jurisdictional error or any error apparent  

on the face of it, the writ petition was accordingly  

dismissed.  

8. We have heard Mr. Shibashish Misra, learned counsel  

appearing on behalf of the appellants and Mr. Jayant  

Bhushan, learned senior counsel appearing for the  

applicants.

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THE CONTENTIONS OF THE PARTIES  

9. The appellants would submit that on 16.11.1999), the  

Government of Orissa, Department of Energy, approved the  

proposal of the appellant-Corporation to float the VSS  

after concurrence from the Finance Department in respect  

of NMRs/Contingent Khalasis. On 15.04.2000, the President  

of the Employee Union wrote to the Chairman to fix a date  

to discuss about certain issues. One of the issues was about  

enhancement of the VRS for NMR employees. On 27.04.2000,  

the appellant-Corporation informed the Senior General  

Manager that the VSS shall be enforced from 01.05.2000 to  

31.05.2000 in Rengali Unit. A Notification, along with the  

Scheme, was to be circulated amongst the workers. It is the  

appellants case that 260 NMRs/Contingent Khalasis  

requested for separation out of 357. The Corporation  

accepted the application of 254 NMRs/Contingent Khalasis.  

On 25.05.2000, a discussion took place between the  

Management and the Union. The decisions were taken  

regarding regularisation of maximum number of 43 workmen

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and also about the number of workmen to be considered under  

the VSS. The first applicant applied on 31.05.2000 under  

the Scheme. The application of the applicant was accepted  

on 08.06.2000. It is appellants case that applicant’s  

letter dated 01.06.2000 was never received by the  

appellants. On 13.06.2000, in fact, first applicant sought  

payment of gratuity under the Scheme. On 17.06.2000, the  

Corporation notified extension of the VSS for six days from  

14.06.2000 to 24.06.2000. During that phase, 23  

NMRs/Contingent Khalasis sought VSS benefits and the  

applications of 21 were accepted.  

10. On 18.12.2000, an additional affidavit was filed by the  

appellant in this Court in Civil Appeal No. 7343 of 1993,  

bringing out the decision to introduce the VSS and that as  

on 01.05.2000, inter alia, 260 persons had applied for the  

Scheme out of which applications of 255 were accepted and  

they had taken the benefits under the Scheme. On 10.01.2001,  

there was a round of discussion and it was decided that there  

would be no more regularisation of NMRs at the Rengali Unit  

and VSS will be applied once again ending with 28.02.2001.

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On 28.01.2001, the VSS was made available for one month from  

30.01.2001 to 01.03.2001. Under this phase also 3  

NMRs/Contingent Khalasis sought the benefit of the VSS. The  

workmen, who applied for VSS, were paid Rs.1,25,000/-  

towards ex gratia, Rs.5,500/- towards lumpsum differential  

on account of hydro and medical allowances and other amounts  

towards terminal benefits life gratuity, un-availed wages,  

etc.. A total sum of Rs.4,03,41,675/- was disbursed under  

the VSS. It was thereafter that on 29.05.2001, the  

application was filed by the 90 workers under Section 33A  

of the Act.  

11. Learned counsel for the appellants would submit that  

it is a clear case where the Labour Court has failed to  

appreciate that the applicants before it, 90 in number, had  

made applications with full knowledge of the VSS.  

Employees, who were working in the NMR establishment, who  

had put in five years of continuous service or more in the  

Corporation and had three years left before attaining a  

particular age as on 01.01.1999, were entitled under the  

Scheme.

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12. He has placed reliance on the applications actually  

filed by the applicants. He has referred to the contents  

of the applications. He had pointed out that the VSS  

contemplated payment of ex gratia lumpsum of Rs.1.25 lakhs  

besides other amounts.   

13. The purpose of the Scheme was considering the fact that  

the employees of the NMR establishment could only be  

considered for permanent employment in accordance with the  

Scheme which was introduced during May, 1998, and since  

these employees had no right to employment without  

availability of work and considering that some of them had  

put in number of years of service, the VSS was introduced  

for seeking separation with commensurate monetary  

benefits. The further objective was to rationalize manpower  

of the Corporation in the light of the skilled manpower  

required and increased productivity. Still further, the  

Scheme was intended to reduce redundant manpower and  

achieve optimum manpower utilization.

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14. The Scheme was applicable to employees who had joined  

before the date of ban imposed on recruitment. This  

submission, appellants made, on the basis of documents  

which were brought on record after the arguments had  

commenced. The date of ban was 12.04.1993. It was further  

pointed out with reference to Exhibit ‘H’ which is produced  

before the Labour Court that applications contemplated  

witnesses. The witnesses were to be regular or work-charged  

employees in RHEP. Their names were to be disclosed. Clause  

(08) of Exhibit ‘H’ dated 24.04.2000, read as follows and  

was relied upon:  

“08.The willing employees will be required to  

open a SB Account in any Nationalised  

Bank in the locality because the payment  

toward ex-gratia and lump sum amount  

will be made by way of A/c Payee Cheque.  

To facilitate opening of Bank Account,  

a sum of Rs.500/- may be paid to the  

concerned employee on request by way of  

advance which will be adjusted against  

his final dues.”   

15. He further submitted that on the basis of the  

applications filed by all the applicants along with several  

others, who had also applied, the appellant had applied the

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yardstick of eligibility. The workers entitled were given  

the benefit under the VSS. The amount due came to be credited  

into their bank accounts. Therefore, it is not open to the  

applicants to resile from their position as established by  

their applications and set up a case as if they have been  

defrauded into making such applications. The applicants  

were aware of the contents and the consequences. The Labour  

Court has acted illegally in arriving at the conclusions  

and passing the Award, noticed by us. He also relied on  

(2003) 5 SCC 163; (2004) 2 SCC 193; (2006) 9 SCC 177; (2004)  

9 SCC 36; (2003) 2 SCC 721; (2016) 9 SCC 375; (2006) 3 SCC  

708; (2015) 4 SCC 482; (2003) 1 SCC 250; AIR 1964 SC 477.  

16. Having received the benefits under the VSS, it was not  

open to the workers to reprobate. The Labour Court has  

clearly overlooked the overwhelming evidence in the form  

of the applications duly made by the applicants claiming  

benefit of the VSS, the factum of payment to the applicants  

in terms of the applications into the bank accounts. He  

would also further point out that the payments can be vouch

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saved for by the fact that the procedure has been sanctified  

by there being two witnesses to the said procedure as well.   

17. Per contra, Shri Jayant Bhushan, learned senior  

counsel, would point out that this Court may appreciate that  

what is involved are findings of fact rendered by the Labour  

Court. The High Court, under its supervisory jurisdiction,  

has chosen not to interfere with such findings of fact and  

they should not be disturbed by this Court in exercise of  

power under Article 136 of the Constitution of India. Next,  

he would point out that the applicants, who were only NMR  

workers, could not be attributed with the knowledge of the  

contents of the Scheme. All the matters have been  

appreciated by the Labour Court. He further pointed out that  

the following application made by one of the applicants (the  

First Applicant). It reads as follows:  

“To,  

The Director (HRD),  

Corporate Office,  

Bhubaneswar  

Through the Manager,  

Maintenance Division RHEP, Rengali.  

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Sub: Regarding withdrawal of my VSS  

Application.  

Sir  

The humble applicant Sri Giridhari Sahoo has  

been working as NMR Welder in Maintenance  

Division since 3.6.1988 on 31.5.2000 upon the  

threat and coercion of the Management,  

Maintenance, being afraid I was made to sign  

the VSS against my wish. I never intended to  

take VSS. I was told that unless I sign the  

VSS application I will lose (sic) everything  

and will be forced to dire striates.  

Therefore, I humbly request that my  

application dated 31.5.2000 may be returned  

to me for which I will remain ever obliged.  

Yours faithfully,  

Sd/-  

Giridhari Sahoo  

1.6.2000  

xxx  xxx  xxx  xxx”  

(Emphasis supplied)  

18. He further contended that workers have also,  

immediately after the event, moved the Conciliation  

Officer. This is sufficient to show that they were initially  

not cognizant of the consequences and, at any rate, at the  

earliest, they have sought to resile. He also relied on the

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judgment of this Court in Management of Madurantakam Coop.  

Sugar Mills Limited v. S. Viswanathan1.  

19. Per contra, the learned counsel for the appellants,  

would point out that there was, at any rate, only one  

application in the nature of the application which we have  

just referred to, namely, that is to say, only one worker  

has brought on record an application stating about threat  

and coercion of the appellants-Management and that the  

workmen never intended to take the VSS. No doubt, the case  

of appellants is that the letter of first applicant dated  

01.06.2000, was not received. The evidence has been given  

by only four workers. The applications have been given by  

90 applicants. Therefore, it was not open to the applicants  

to lay store by the application referred to above.  

THE SCOPE OF CERTIORARI JURISDICTION  

20.  Since, applicants contend that the findings of fact  

by the Labour Court are virtually unassailable in the  

Certiorari jurisdiction and the argument has been found  

                                                           1 (2005) 3 SCC 193

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appealing and accepted by the High Court, it is necessary  

to deal with the same.   

21. An erroneous decision in respect of a matter which  

falls within the authority of the Tribunal would not entitle  

a writ applicant for a writ of certiorari. However, if the  

decision relates to anything collateral to the merit, an  

erroneous decision upon which, would affect its  

jurisdiction, a writ of certiorari would lie.  See Parry  

& Co. Ltd. vs. Commercial Employees Association AIR 1952  

SC 179.  The scope of writ of certiorari came in for an  

elaborate consideration by this Court in T.C. Basappa v.  

T. Nagappa 2. Therein, this Court, inter alia, held as  

follows:  

 “7. … The second essential feature of a  

writ of certiorari is that the control which  

is exercised through it over judicial or  

quasi-judicial tribunals or bodies is not in  

an appellate but supervisory capacity. In  

granting a writ of certiorari the superior  

court does not exercise the powers of an  

appellate tribunal. It does not review or  

reweigh the evidence upon which the  

determination of the inferior tribunal  

                                                           2 AIR 1954 SC 440

15  

purports to be based. It demolishes the order  

which it considers to be without jurisdiction  

or palpably erroneous but does not substitute  

its own views for those of the inferior  

tribunal. The offending order or proceeding  

so to say is put out of the way as one which  

should not be used to the detriment of any  

person [ Vide Per Lord Cairns in Walshall's  

Overseers v. London and North Western Railway  

Co., (1879) 4 AC 30, 39.].  

xxx  xxx   xxx  

9. Certiorari may lie and is generally  

granted when a court has acted without or in  

excess of its jurisdiction. The want of  

jurisdiction may arise from the nature of the  

subject-matter of the proceeding or from the  

absence of some preliminary proceeding or the  

court itself may not be legally constituted  

or suffer from certain disability by reason  

of extraneous circumstances [Vide Halsbury,  

2nd Edn., Vol. IX, p. 880]. When the  

jurisdiction of the court depends upon the  

existence of some collateral fact, it is well  

settled that the court cannot by a wrong  

decision of the fact give it jurisdiction  

which it would not otherwise possess [ Vide  

Banbury v. Fuller, 9 Exch. 111; R v. Income  

Tax Special Purposes Commissioners, 21 QBD  

313].  

10. A tribunal may be competent to enter upon  

an enquiry but in making the enquiry it may  

act in flagrant disregard of the rules of  

procedure or where no particular procedure is  

prescribed, it may violate the principles of  

natural justice. A writ of certiorari may be  

available in such cases. An error in the  

decision or determination itself may also be  

amenable to a writ of certiorari but it must

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be a manifest error apparent on the face of  

the proceedings, e.g. when it is based on  

clear ignorance or disregard of the  

provisions of law. …”  

(Emphasis supplied)  

22. In Hari Vishnu Kamath v. Ahmed Ishaque & Ors.3, this  

Court held:  

“21. … On these authorities, the  

following propositions may be taken as  

established: (1) Certiorari will be issued  

for correcting errors of jurisdiction, as  

when an inferior Court or Tribunal acts  

without jurisdiction or in excess of it, or  

fails to exercise it. (2) Certiorari will  

also be issued when the court or Tribunal acts  

illegally in the exercise of its undoubted  

jurisdiction, as when it decides without  

giving an opportunity to the parties to be  

heard, or violates the principles of natural  

justice. (3) The court issuing a writ of  

certiorari acts in exercise of a supervisory  

and not appellate jurisdiction. One  

consequence of this is that the court will not  

review findings of fact reached by the  

inferior court or tribunal, even if they be  

erroneous. This is on the principle that a  

court which has jurisdiction over a  

subject-matter has jurisdiction to decide  

wrong as well as right, and when the  

legislature does not choose to confer a right  

of appeal against that decision, it would be  

defeating its purpose and policy, if a  

                                                           3 AIR 1955 SC 233

17  

superior court were to rehear the case on the  

evidence, and substitute its own findings in  

certiorari. These propositions are  

well-settled and are not in dispute.   

xxx  xxx   xxx  

23. It may therefore be taken as settled  

that a writ of certiorari could be issued to  

correct an error of law. But it is essential  

that it should be something more than a mere  

error; it must be one which must be manifest  

on the face of the record. … The fact is that  

what is an error apparent on the face of the  

record cannot be defined precisely or  

exhaustively, there being an element of  

indefiniteness inherent in its very nature,  

and it must be left to be determined  

judicially on the facts of each case.”  

(Emphasis supplied)  

23. The question arose in Dharangadhara Chemical Works  

Ltd. v. State of Saurashtra and others4. The question was  

whether the finding by the Tribunal under the Act about the  

party respondents being workmen was liable to be interfered  

with. After dealing with various tests relating to  

                                                           4 AIR 1957 SC 264  

18  

determining the issue, this Court also made the following  

observations:  

“19. … It is equally well settled that  

the decision of the Trinbunal on a question  

of fact which it has jurisdiction to  

determine is not liable to be questioned in  

proceedings under Article 226 of the  

Constitution unless at the least it is shown  

to be fully unsupported by evidence.”  

(Emphasis supplied)  

24. A Constitution Bench of this Court, in Syed Yakoob v.  

K.S. Radhakrishnan and another5, has spoken about the scope  

of Writ of Certiorari in the following terms:  

“7. The question about the limits of the  

jurisdiction of High Courts in issuing a writ  

of certiorari under Article 226 has been  

frequently considered by this Court and the  

true legal position in that behalf is no  

longer in doubt. A writ of certiorari can be  

issued for correcting errors of jurisdiction  

committed by inferior courts or tribunals:  

these are cases where orders are passed by  

inferior courts or tribunals without  

jurisdiction, or in excess of it, or as a  

result of failure to exercise jurisdiction.  

A writ can similarly be issued where in  

exercise of jurisdiction conferred on it, the  

court or tribunal acts illegally or  

improperly, as for instance, it decides a  

question without giving an opportunity to be  

heard to the party affected by the order, or  

                                                           5 AIR 1964 SC 477

19  

where the procedure adopted in dealing with  

the dispute is opposed to principles of  

natural justice. There is, however, no doubt  

that the jurisdiction to issue a writ of  

certiorari is a supervisory jurisdiction and  

the court exercising it is not entitled to act  

as an appellate court. This limitation  

necessarily means that findings of fact  

reached by the inferior court or tribunal as  

a result of the appreciation of evidence  

cannot be reopened or questioned in writ  

proceedings. An error of law which is  

apparent on the face of the record can be  

corrected by a writ, but not an error of fact,  

however grave it may appear to be. In regard  

to a finding of fact recorded by the tribunal,  

a writ of certiorari can be issued if it is  

shown that in recording the said finding, the  

tribunal had erroneously refused to admit  

admissible and material evidence, or had  

erroneously admitted inadmissible evidence  

which has influenced the impugned finding.  

Similarly, if a finding of fact is based on  

no evidence, that would be regarded as an  

error of law which can be corrected by a writ  

of certiorari. In dealing with this category  

of cases, however, we must always bear in mind  

that a finding of fact recorded by the  

tribunal cannot be challenged in proceedings  

for a writ of certiorari on the ground that  

the relevant and material evidence adduced  

before the tribunal was insufficient or  

inadequate to sustain the impugned finding.  

The adequacy or sufficiency of evidence led  

on a point and the inference of fact to be  

drawn from the said finding are within the  

exclusive jurisdiction of the tribunal, and  

the said points cannot be agitated before a  

writ court. It is within these limits that the  

jurisdiction conferred on the High Courts

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under Article 226 to issue a writ of  

certiorari can be legitimately exercised  

(vide Hari Vishnu Kamath v. Ahmad Ishaque  

[AIR 1955 SC 233] , Nagendra Nath Bora v.  

Commr. of Hills Division and Appeals [AIR  

1958 SC 398] and Kaushalya Devi v. Bachittar  

Singh [AIR 1960 SC 1168]).”  

(Emphasis supplied)  

25. We may more importantly also advert to the view  

expressed by this Court in a matter which again arose under  

the Act in M/s. Perry and Co. Ltd. v. P.C. Pal, Judge of  

the Second Industrial Tribunal, Calcutta and others6.  It  

was a case related to the scope of the jurisdiction of the  

Tribunal in the matter of retrenchment under Section 25F.   

This is what the Court held inter alia:  

“11. The grounds on which interference  

by the High Court is available in such writ  

petitions have by now been well established.  

In Basappa v. Nagappa [(1955) SCR 250] it  

was observed that a writ of certiorari is  

generally granted when a court has acted  

without or in excess of its jurisdiction. It  

is available in those cases where a tribunal,  

though competent to enter upon an enquiry,  

acts in flagrant disregard of the rules of  

procedure or violates the principles of  

natural justice where no particular  

                                                           6 AIR 1970 SC 1334

21  

procedure is prescribed. But a mere wrong  

decision cannot be corrected by a writ of  

certiorari as that would be using it as the  

cloak of an appeal in disguise but a manifest  

error apparent on the face of the proceedings  

based on a clear ignorance or disregard of the  

provisions of law or absence of or excess of  

jurisdiction, when shown, can be so  

corrected. In Dharangadhara Chemical Works  

Ltd. v. State of Saurashtra [(1957) SCR 152]  

this Court once again observed that where the  

Tribunal having jurisdiction to decide a  

question comes to a finding of fact, such a  

finding is not open to question under Article  

226 unless it could be shown to be wholly  

unwarranted by the evidence. Likewise,  

in State of Andhra Pradesh v. S. Sree Ram  

Rao [AIR 1963 S.C. 1723] this Court observed  

that where the Tribunal has disabled itself  

from reaching a fair decision by some  

considerations extraneous to the evidence  

and the merits of the case or where its  

conclusion on the very face of it is so wholly  

arbitrary and capricious that no reasonable  

person can ever have arrived at that  

conclusion interference under Article 226  

would be justified. …”  

(Emphasis supplied)  

26. We may advert to the decision of this Court in Mukand  

Ltd. v. Mukand Staff & Officers’ Association7. We may only  

advert to the following paragraphs:  

                                                           7 (2004) 10 SCC 460

22  

“47. In support of his contention that  

this Court while exercising its power under  

Article 136 of the Constitution of India in  

an appeal from the judgment of the High Court  

rendered in exercise of its powers under  

Articles 226 and 227 of the Constitution of  

India will exercise the same power which the  

High Court could exercise and will not  

interfere with the finding of facts recorded  

by a Tribunal, learned counsel cited the  

judgment in the case of Parry & Co. Ltd. v.  

P.C. Pal [AIR 1970 SC 1334 : (1969) 2 SCR 976]  

. In the said case, this Court held as under:  

(AIR p. 1341, para 13)  

“13. Since this is an appeal arising from  

a writ petition for certiorari we also  

would not interfere with the conclusions  

arrived at by the Tribunal except on  

grounds on which the High Court could  

have done.”  

48. In the case of Fuel Injection Ltd.  

v. Kamger Sabha [(1978) 1 SCC 156 : 1978 SCC  

(L&S) 33] this Court observed as under: (SCC  

p. 157, para 3)  

“But the present appeals are from a  

judgment of the High Court under Article  

226 and so the jurisdiction of this Court  

in entertaining an appeal by special  

leave under Article 136 must ordinarily  

be confined to what the High Court could  

or would have done under Article 226.”  

49. In our view, the material that was  

placed before the Tribunal was not considered  

or discussed and that there was, as such, no  

adjudication by the Tribunal. The whole award  

of the Tribunal, in our view, is liable to be  

set aside on the ground of non-application of  

mind by the Tribunal to the material on

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record. In the first place, the Tribunal has  

no jurisdiction to entertain and decide a  

dispute which covered within its fold  

“persons who are not workmen”. That the  

material on record before the Tribunal as  

regards the comparable concerns was  

admittedly “sketchy” and incomplete as  

observed by the learned Single Judge of the  

High Court and that the award based on such  

material could not have been sustained.”  

(Emphasis supplied)  

27. In Durga Das Basu “Commentary on the Constitution of  

India” 9th Edition, in regard to the concept of no evidence,  

we find the following discussion:  

“No evidence’ does not mean only a total  

dearth of evidence.  It extends to any case  

where the evience taken as a whole is not  

reasonably capable of supporting the  

finding, or where, in other words, no  

tribunal could reasonably reach that  

conclusion on that evidence.  This “no  

evidence” principle clearly has something in  

common with the principle that perverse or  

unreasonable action is aunauthorised and  

ultra vires.  An order made without “any  

evidence” to support it is in truth, made  

without order made without “any evidence is  

worthless, it is equal to having “no  

evidence” jurisdiction.”  

(Emphasis supplied)  

24  

28. In fact, in the decision relied upon by the applicants,  

viz., S. Viswanathan (supra), it is, inter alia, held as  

follows:  

“12. Normally, the Labour Court or the  

Industrial Tribunal, as the case may be, is  

the final court of facts in these types of  

disputes, but if a finding of fact is perverse  

or if the same is not based on legal evidence  

the High Court exercising a power either  

under Article 226 or under Article 227 of the  

Constitution can go into the question of fact  

decided by the Labour Court or the Tribunal.  

But before going into such an exercise it is  

necessary that the writ court must record  

reasons why it intends reconsidering a  

finding of fact. In the absence of any such  

defect in the order of the Labour Court the  

writ court will not enter into the realm of  

factual disputes and finding given  

thereon.…”  

(Emphasis supplied)  

29. On the conspectus of the decisions and material, we  

would hold as follows:  

The jurisdiction to issue writ of certiorari is  

supervisory and not appellate. The Court considering  

a writ application of Certiorari will not don the cap  

of an Appellate Court.  It will not reappreciate  

evidence.  The Writ of Certiorari is intended to

25  

correct jurisdictional excesses. A writ of  

prohibition would issue when a Tribunal or authority  

has not yet concluded its proceedings.  Once a  

decision is rendered by a body amenable to Certiorari  

jurisdiction, certiorari could be issued when a  

jurisdictional error is clearly established.  The  

jurisdictional error may be from failure to observe  

the limits of its jurisdiction.  It may arise from  

the procedure adopted by the body after validly  

assuming jurisdiction.  It may act in violation of  

principles of natural justice.  The body whose  

decision which comes under attack may decide a  

collateral fact which is also a jurisdictional fact  

and assume jurisdiction. Such a finding of fact is  

not immune from being interfered with by a Writ of  

Certiorari.  As far as the finding of fact which is  

one within the jurisdiction of the court, it is  

ordinarily a matter ‘off bounds’ for the writ court.   

This is for the reason that a body which has  

jurisdiction to decide the matter has the

26  

jurisdiction to decide it correctly or wrongly. It  

would become a mere error and that too an error of  

fact.  However, gross it may amount to, it does not  

amount to an error of law.  An error of law which  

becomes vulnerable to judicial scrutiny by way of  

Certiorari must also one which is apparent on the  

face of the record.  As held by this Court in Hari  

Vishnu Kamath (supra), as to what constitutes an  

error apparent on the face of the record, is a matter  

to be decided by the court on the facts of each case.   

A finding of fact which is not supported by any  

evidence would be perverse and in fact would  

constitute an error of law enabling the writ court  

to interfere.  It is also to be noticed that if the  

overwhelming weight of the evidence does not support  

the finding, it would render the decision amendable  

to certiorari jurisdiction. This would be the same  

as a finding which is wholly unwarranted by the  

evidence which is what this Court has laid down [See  

M/s. Perry and Co. Ltd (supra)].

27  

THE APPLICATION UNDER SECTION 33A OF THE ACT  

30. The applicants were NMR workers. They moved the  

application before the Labour Court alleging violation of  

Section 33(1) of the Act. Section 33 (1) of the Act, reads  

as follows:  

“33(1) During the pendency of any  

conciliation proceeding before a  

conciliation officer or a Board or of any  

proceeding before 2 an arbitrator or] a  

Labour Court or Tribunal or National Tribunal  

in respect of an industrial dispute, no  

employer shall--  

(a) in regard to any matter connected  

with the dispute, alter, to the  

prejudice of the workmen concerned in  

such dispute, the conditions of service  

applicable to them immediately before  

the commencement of such proceeding; or  

(b) for any misconduct connected with  

the dispute, discharge or punish,  

whether by dismissal or otherwise, any  

workmen concerned in such dispute, save  

with the express permission in writing  

of the authority before which the  

proceeding is pending.”  

28  

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

“33A. Special provision for adjudication as  

to whether conditions of service, etc.,  

changed during pendency of proceeding.-  

Where an employer contravenes the provisions  

of section 33 during the pendency of  

proceedings before a conciliation officer,  

Board, an arbitrator, Labour Court, Tribunal  

or National Tribunal any employee aggrieved  

by such contravention, may make a complaint  

in writing, in the prescribed manner,-  

(a) to such conciliation officer or  

Board, and the conciliation officer or  

Board shall take such complaint into  

account in mediating in, and promoting  

the settlement of, such industrial  

dispute; and  

(b) to such arbitrator, Labour Court,  

Tribunal or National Tribunal and on  

receipt of such complaint, the  

arbitrator, Labour Court, Tribunal or  

National Tribunal, as the case may be,  

shall adjudicate upon the complaint as  

if it were a dispute referred to or  

pending before it, in accordance with  

the provisions of this Act and shall  

submit his or its award to the  

appropriate Government and the  

provisions of this Act shall apply  

accordingly.”  

29  

32. We have noticed that there was a proceeding before the  

Labour Court on the reference regarding the availability  

of certain benefits to the NMR workers. It is during the  

pendency of the same that the applicants alleged denial of  

employment. They alleged that in essence, they were duped  

into submitting applications as if they were intended to  

secure the benefit of the VSS whereas they put their  

signatures on the blank papers not comprehending such use.   

33. In this case, the case of the appellants is that Section  

33 of the Act is not attracted as this is a case where the  

applicants voluntarily applied for getting benefit of the  

VSS. They were given the benefits. Section 33 of the Act  

has no application.  

34. Learned senior counsel for the applicants, very  

fairly, submitted that if it is found that the applications  

were made by the applicants voluntarily and they had claimed  

the benefits of the VSS, then, Section 33, as such, may not  

apply. Therefore, the core issue to be decided is, whether

30  

applications were indeed filed by the applicants cognizant  

of its contents and aware of its consequences.  

THE PLEADING IN THE APPLICATION AND THE LAW  

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

“6. That the Hon’ble High Court of Orissa in  

OJC No.1527/91 have passed an order to  

regularize all NMR workers those who have  

completed 5 years of service or otherwise  

payment equal pay for equal work as their  

counter part in regular establishments are  

getting in the Rengali Hydro Power Project.”  

36. There is reference to the matters, which were pending,  

which we have, inter alia, referred to. We must notice the  

further pleading in the application filed by the applicants  

under Section 33A of the Act:   

9. To defraud the workmen for regularization  

of their services, appropriate authorities have  

obtained their signatures enmass on certain  

papers under the pretext of regularization of  

workmen and by showing undue influence of

31  

regularization of the service of the workmen that  

since the projects were temporary and they were  

to be regularized in the Corporation in regular  

cadre, the old job will come to an end and new job  

in Corporation would stand afresh for which the  

workmen without understanding the implication of  

application on plain faith with authority have  

signed such applications. A fraud was practiced  

on the workmen and such change amended to change  

service without leave of Tribunal, as such  

illegal. Change having been not voluntary, being  

actuated with fraud, action of the Management is  

in violation of Section 33 of the Act and is in  

nullity. Opposite parties refused employment  

which amounts to retrenchment. This action is in  

clear violation of Section 33 of the Act.  

(Emphasis supplied)  

37. Counter affidavit was filed. There is denial by the  

appellants of the above contentions.

32  

38.  Order VI Rule 4 of The Code of Civil Procedure, 1908  

(hereinafter referred to as ‘the CPC’, for short), reads  

as follows:  

“In all cases in which the party  

pleading relies on any  

misrepresentation, fraud, breach of  

trust, willful default, or undue  

influence, and in all other cases in  

which particulars may be necessary  

beyond such as are exemplified in the  

forms aforesaid, particulars (with  

dates and items if necessary) shall be  

stated in the pleading.”   

39. Therefore, in a civil suit, if the plaintiff alleges  

fraud, misrepresentation or undue influence, he is obliged  

to given particulars. An allegation of fraud is a matter  

of a grave nature. So is the allegation of undue influence  

and misrepresentation. The intention underlying Order VI  

Rule 4 of the CPC is that the opposite party is to be put  

on sufficient notice as to the case which he is called upon  

to meet. The law loathes, parties to the lis being taken  

by surprise resulting in the violation of the basic  

principle of justice that a party should be able to

33  

effectively meet the case set up against him. What is fraud?  

Is it the same as misrepresentation?   

40. In The Indian Contract Act, 1872 (hereinafter referred  

to as ‘the Contract Act’, for short), definition of “fraud”,  

is as follows:  

“17. ‘Fraud’ defined.—‘Fraud’ means and  

includes any of the following acts committed  

by a party to a contract, or with his  

connivance, or by his agent, with intent to  

deceive another party thereto or his agent,  

or to induce him to enter into the contract:—   

(1) the suggestion, as a fact, of that which  

is not true, by one who does not believe  

it to be true;  

(2) the active concealment of a fact by one  

having knowledge or belief of the fact;  

(3) a promise made without any intention of  

performing it;  

(4) any other act fitted to deceive;  

(5) any such act or omission as the law  

specially declares to be fraudulent.  

Explanation.—Mere silence as to facts  

likely to affect the willingness of a  

person to enter into a contract is not  

fraud, unless the circumstances of the  

case are such that, regard being had to  

them, it is the duty of the person  

keeping silence to speak2, or unless his

34  

silence, is, in itself, equivalent to  

speech.  

Explanation.-Mere silence as to  

facts likely to affect the willingness  

of a person to enter into a contract is  

not fraud, unless the circumstances of  

the case are such that, regard being had  

to them, it is the duty of the person  

keeping silence to speak, or unless his  

silence is, in itself, equivalent to  

speech.”  

41. “Misrepresentation” is separately defined in Section  

18 of the Contract Act, as follows:  

“18.“Misrepresentation” defined.—  

“Misrepresentation” means and includes—  

(1) the positive assertion, in a manner not  

warranted by the information of the  

person making it, of that which is not  

true, though he believes it to be true;  

(2) any breach of duty which, without an  

intent to deceive, gains an advantage of  

the person committing it, or any one  

claiming under him, by misleading  

another to his prejudice, or to the  

prejudice of any one claiming under him;  

(3) causing, however innocently, a party to  

an agreement, to make a mistake as to the  

substance of the thing which is the  

subject of the agreement.”  

35  

42. Section 19 of the Contract Act declares that when  

consent to an agreement is caused by coercion, fraud or  

misrepresentation, the agreement is voidable at the option  

of the person whose consent was so caused. The exception  

in Section 19, reads as follows:  

“Exception —If such consent was caused  

by misrepresentation or by silence,  

fraudulent within the meaning of section 17,  

the contract, nevertheless, is not voidable,  

if the party whose consent was so caused had  

the means of discovering the truth with  

ordinary diligence.”  

43. “Undue influence” is separately defined under Section  

16 of the Contract Act, which reads as follows:  

“16. ‘Undue influence’ defined.—(1) A  

contract is said to be induced by ‘undue  

influence’ where the relations subsisting  

between the parties are such that one of the  

parties is in a position to dominate the will  

of the other and uses that position to obtain  

an unfair advantage over the other.  

(2) In particular and without prejudice to  

the generality of the foregoing principle, a  

person is deemed to be in a position to  

dominate the will of another—  

(a) where he holds a real or apparent  

authority over the other, or where

36  

he stands in a fiduciary relation to  

the other; or  

(b) where he makes a contract with a  

person whose mental capacity is  

temporarily or permanently  

affected by reason of age, illness,  

or mental or bodily distress.  

(3) Where a person who is in a position to  

dominate the will of another, enters into a  

contract with him, and the transaction  

appears, on the face of it or on the evidence  

adduced, to be unconscionable, the burden of  

proving that such contract was not induced by  

undue influence shall be upon the person in  

a position to dominate the will of the other.   

Nothing in the sub-section shall affect  

the provisions of section 111 of the Indian  

Evidence Act, 1872 (1 of 1872).”  

44. A perusal of the definition of the word “fraud”, as  

defined in Section 17 of the Contract Act, would reveal that  

the concept of fraud is very wide. It includes any  

suggestion, as a fact, of that which is not true, by a person  

who does or does not believe it to be true. It may be  

contrasted with Section 18(1) of the Contract Act which,  

inter alia, defines “misrepresentation”. It provides that  

it is misrepresentation if a positive assertion is made by

37  

a person of that which is not true in a manner which is not  

warranted by the information which he has. This is despite  

the fact that he may believe it to be true. In other words,  

in fraud, the person who makes an untruthful suggestion,  

does not himself believe it to be true. He knows it to be  

not true, yet he makes a suggestion of the fact as if it  

were true. In misrepresentation, on the other hand, the  

person making misrepresentation believes it to be true. But  

the law declares it to be misrepresentation on the basis  

of information which he had and what he believed to be true  

was not true. Therefore, the representation made by him  

becomes a misrepresentation as it is a statement which is  

found to be untrue. Fraud is committed if a person actively  

conceals a fact, who either knows about the fact or believes  

in the existence of the fact. The concealment must be  

active. It is here that mere silence has been explained in  

the Exception which would affect the decision of a person  

who enters into a contract to be not fraud unless the  

circumstances are such that it becomes his duty to speak.  

His silence itself may amount to speech. A person may make

38  

a promise without having any intention to perform it. It  

is fraud. The law further declares that any other act fitted  

to deceive, is fraud. So also, any act or omission, which  

the law declares to be fraudulent, amounts to fraud. Running  

as a golden trend however and as a requirement of law through  

the various limbs of Section 17 of the Contract Act, is the  

element of deceit. A person who stands accused of fraud be  

it in a civil or criminal action, must entertain an  

intention to commit deception. Deception can embrace  

various forms and it is a matter to be judged on the facts  

of each case. It is, apparently, on account of these serious  

circumstances that fraud has on a legal relationship or a  

purported legal relationship that the particulars and  

details of fraud is required if pleaded in a civil suit or  

a proceeding to which the CPC applies.  

45. We are here not concerned with a civil suit. The  

application in question has been filed under Section 33A  

of the Act. Section 11 (1) to (3) of the Act, read as follows:  

39  

“11. Procedure and powers of conciliation  

officers, Boards, Courts and  

Tribunals.-(1) Subject to any rules that may  

be made in this behalf, an arbitrator, a  

Board, Court, Labour Court, Tribunal or  

National Tribunal shall follow such  

procedure as the arbitrator or other  

authority concerned may think fit.  

(2) A conciliation officer or a member of a  

Board, 4 or Court or the presiding officer of  

a Labour Court, Tribunal or National Tribunal  

may for the purpose of inquiry into any  

existing or apprehended industrial dispute,  

after giving reasonable notice, enter the  

premises occupied by any establishment to  

which the dispute relates.  

(3) Every Board, Court, Labour Court,  

Tribunal and National Tribunal] shall have  

the same powers as are vested in a Civil Court  

under the Code of Civil Procedure, 1908 (5 of  

1908 ), when trying a suit, in respect of the  

following matters, namely:-  

(a) enforcing the attendance of any  

person and examining him on oath;  

(b) compelling the production of  

documents and material objects;  

(c) issuing commissions for the  

examination of witnesses;  

(d) in respect of such other matters as  

may be prescribed; and every  

inquiry or investigation by a  

Board, Court, 2 Labour Court,  

Tribunal or National Tribunal],  

shall be deemed to be a judicial  

proceeding within the meaning of

40  

sections 193 and 228 of the Indian  

Penal Code (45 of 1860).”  

(Emphasis supplied)  

46. An application under Section 33A of the Act is not a  

civil suit. The provisions of Order VI Rule 4 of the CPC,  

as such, is not applicable to proceedings under the Act.  

Does it mean that the law as to pleadings is not to apply  

at all to proceedings under the Act or will it be more  

correct to say that the law as to pleadings will apply but  

without its full vigor. We would think the latter would be  

the correct position in law. While the provisions of the  

CPC may not apply the salutary principles embodied would  

apply. This is for the reason that the purpose of pleading,  

be it in a civil suit or other proceeding, is to allow the  

opposite party to meet the case of his opponent to ready  

the evidence to be adduced and marshal the law in support  

of its case.   

47. In Management of Hindustan Steel Limited v. Workmen and  

others8, the case arose under Section 25-FFF of the Act  

                                                           8 AIR 1973 SC 878

41  

thereof and the notice issued under the provision was  

impugned as being conditional. This is what this Court found  

in regard to the contention about the vagueness of the plea:   

“13. In our view, Shri Setalvad was  

fully justified in submitting that the  

management had been taken by surprise and  

that the Tribunal was in error in holding the  

general ground in the written statement to  

cover the specific plea of infirmity of the  

notice because of its being conditional. The  

plea of the statutory defect in the notice  

should, in our opinion, have been reasonably  

specific and precise so as to enable the  

appellant to meet it. The general plea could  

not serve the object of putting the appellant  

on guard about the precise case to be met at  

the trial and tell the management the precise  

nature of the plea with respect to the defect  

in the notice, to enable them to meet it. …”  

48. In Bharat Iron Works v. Bhagubhai Balubhai Patel 9,  

again a case arose under Section 33 of the Act and is,  

therefore, close to the facts of the case before us.  

Respondent/ employee complained of victimization and  

invoked Section 33 of the Act. This Court, apart from  

holding that the Tribunal granting or withholding  

                                                           9 AIR 1976 SC 98

42  

permission under Section 33 of the Act does not sit as a  

Court of Appeal, administered the following words of  

caution in regard to pleading:  

“9. A word of caution is necessary.  

Victimisation is a serious charge by an  

employee against an employer, and,  

therefore, it must be properly and adequately  

pleaded giving all particulars upon which the  

charge is based to enable the employer to  

fully meet them. The charge must not be vague  

or indefinite being as it is an amalgam of  

facts as well as inferences and attitudes.  

The fact that there is a union espousing the  

cause of the employees in legitimate trade  

union activity and an employee is a member or  

active office-bearer thereof, is, per se, no  

crucial instance. Collective bargaining  

being the order of the day in a democratic  

social welfare State, legitimate trade union  

activity which must shun all kinds of  

physical threats, coercion or violence, must  

march with a spirit of tolerance,  

understanding and grace in dealings on the  

part of the employer. Such activity can flow  

in healthy channel only on mutual cooperation  

between employer and employee and cannot be  

considered as irksome by the management in  

the best interest of the concern. Dialogues  

with representatives of a union help striking  

a delicate balance in adjustment and  

settlement of various contentious claims and  

issues.  

10. The onus of establishing a plea of  

victimisation will be upon the person

43  

pleading it. Since a charge of victimisation  

is a serious matter reflecting, to a degree,  

upon the subjective attitude of the employer  

evidenced by acts and conduct, these have to  

be established by safe and sure evidence.  

Mere allegations, vague suggestions and  

insinuations are not enough. All particulars  

of the charge brought out, if believed, must  

be weighed by the Tribunal and a conclusion  

should be reached on a totality of the  

evidence produced.”  

49. In regard to a case based on acquiescence, the High  

Court of Madras has also spoken of the need for specific  

plea [See (1991), Labour and Industrial Cases, Page 40].   

50. Applying the principles of law to the facts of our case,  

we would think that there is no sufficient pleading in  

regard to fraud. The allegation as to undue influence is  

totally without any basis in the pleading.   

51. The VSS, if availed of by an employee voluntarily,  

amounts to a contract. This Court, in Bank of India and  

others v. O.P. Swarnakar and others10, was dealing with the  

case of voluntary retirement scheme floated by the bank.

44  

A question arose as to whether the scheme was an offer or  

an invitation to treat. After elaborate consideration of  

the scheme, the Court took the view that having regard to  

the facts, in particular, the fact that the bank reserved  

its right to accept or reject the application, the scheme  

was an invitation to treat. The application made by the  

employee amounted to an offer and a contract emerged only  

if the application was accepted by the bank. It was only  

when the offer of the employee was accepted, it became an  

enforceable contract, it was held. This aspect assumes  

significance in the light of the fact that the concept of  

fraud, undue influence and misrepresentation as defined in  

the Contract Act, would be apposite in the context of the  

Scheme giving rise to an enforceable contract.   

THE EVIDENCE BEFORE THE LABOUR COURT   

52. Now, the time is ripe to look at the material which has  

been produced before the Labour Court by the parties. On  

the side of the applicants, 90 in number, 4 witnesses were  

                                                                                                                                                                                           10 (2003) 2 SCC 721

45  

examined. The first witness is Giridhari Sahu-the First  

Applicant. He states, inter alia, as follows:  

He is one of the applicants. There are  

89 other applications with him praying for  

the same relief. He was working in the  

Maintenance Division. Others were working in  

other Divisions. He was working since  

03.06.1988. He was refused employment since  

13.06.2000. Reference is made to the order  

passed in O.J.C. No. 2420 of 1989 which we  

have referred to. Appellants did not comply  

with the directions of the High Court. It was  

stated that the Civil Appeal is pending in  

this Court. A regulation was made regulating  

the regularization of the NMRs who had  

completed five years of service. After  

formation of the Corporation, the appellants  

introduced the Scheme. AW1 and other  

applicants were given to understand that  

their services will be regularized and  

signatures taken in the VSS form. There was  

no decision in the meeting regarding the VSS  

in the Union. Signatures of the witness and  

other applicants were taken by the appellants  

forcibly giving an impression that their  

services will be regularized. They

46  

protested. The reference, which we have  

adverted to, is pending. The conditions of  

service had been changed. In the  

cross-examination, AW1 would state that he  

has not been issued with any appointment  

letter by the time he joined in service. 327  

persons, including AW1, were working during  

his tenure. He denied that he, along with  

other applicants, signed in the Scheme. He  

stated it that it is not a fact that he had  

given the application in the Scheme out of his  

own without any compulsion or force. So also  

the other applicants.   

AW2 is one Chirtamani Patra. He joined  

from 04.05.1987 and till 13.06.2000, he  

worked continuously. The appellants gave  

them the impression that their services will  

be regularized and, at first instance, their  

signature was taken on a blank paper and  

subsequently in a form. Subsequently, he  

could know that the form was meant for VSS.  

Prior to taking signatures in the VSS form,  

no intimation or no notice was given  

regarding the VSS. He had drawn attention to  

the authorities regarding taking of his  

signatures in the VSS application form. The

47  

signatures were obtained at the Divisional  

level. In the cross-examination, he, inter  

alia, stated that more than 300 persons were  

engaged as NMR at that time. He had no  

knowledge about the VSS prior to his refusal  

of employment. He denied that the VSS was  

sufficiently published and he submitted his  

application for VSS. He also stated that it  

was not a fact that signatures of the  

applicants were not taken forcibly or  

fraudulently. He admits to have received  

Rs.5,500/- towards hydro allowance and  

medical allowance as ex gratia.  

AW3 is one Kurtartha Sahu. He joined on  

02.04.1984. He would state that with the  

instigation by the higher authorities, their  

signatures on the VSS form were taken  

forcibly. In the similar way, signatures of  

all the applicants were taken. VSS was not  

published in the notice board or circulated  

among the workers prior to taking their  

signatures. The VSS was not published in any  

local newspaper. In the cross-examination,  

he, inter alia, states that it is not a fact  

that he, along with other applicants, signed

48  

in the VSS form knowing the consequences. He  

further stands by his case in the chief.  

AW4 joined on 06.03.1984. He was refused  

employment on 14.06.2000 along with others.  

Their signature was taken in an application  

and three to four blank papers. They were  

given to understand that their services will  

be regularized. Subsequently, they came to  

know about the application that the  

application they signed was a VSS form. He  

says in cross-examination that to his  

knowledge, the VSS was not published on the  

notice board. He further says he does not know  

if any settlement was made with any Union or  

not by the management. The Executive Engineer  

and HRD and others compelled him and others  

to sign. He has not intimated the concerned  

Chief Engineer. The application, in which his  

signature was taken, was dated 31.05.2000.  

About 15 days thereafter, he got the amount  

in bank draft. About 3-4 days after  

31.05.2000, he raised objection and  

protested against the VSS. After protest,  

they received the money from the management.  

(Emphasis supplied)  

49  

EVIDENCE FOR THE APPELLANTS   

ORAL EVIDENCE  

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

follows:  

Out of the 336 NMRs, 256 NMRs accepted  

the VSS. The Management has neither  

terminated nor retrenched the workers. The  

applicants voluntarily separated themselves  

by accepting the VSS. Exhibit ‘A' is produced  

as the Notification dated 27.04.2000  

constituting the Recommending Committee.  

Exhibit ‘B Series’ were marked as the  

applications. Exhibit ‘C Series’ are the  

acceptances of the applications. Exhibit ‘D’  

is the Order authorizing AGM, HRD Shri A.K.  

Mitra to accept the application. Exhibit ‘E  

Series’ are the payment sheets showing the  

payment of their legal dues and ex gratia in  

account payee cheque. Exhibit ‘C Series’ are  

marked with objection. It is stated in  

Indrawati, the Management implemented the  

VSS and 690 persons were given VSS in  

December, 1999. Exhibit ‘A/I’ is the  

Notification extending the VSS till  

24.06.2000. Exhibit ‘A/II’ is the

50  

Notification extending the VSS till  

01.03.2001. Discussion was made with Rengali  

Power Projects Workers Union before  

implementing the VSS on 10.04.2000 AND  

14/15.04.2000. The President had given the  

agenda for discussion vide Exhibit ‘F’  

including VRS for NMR employees. Finally,  

discussion was held on 20.05.2000 as per  

Exhibit ‘G’ (marked with objection). The  

Union was aware of the implementation of the  

VSS prior to the implementation. The  

witnesses have signed in Exhibit ‘E Series’.  

Exhibit ‘H’ is the guideline issued by the  

Corporate Office. The suggestion that  

signatures of the applicants have been taken  

forcibly, has been denied. An amount of  

Rs.5,500/- paid to the applicants as ex  

gratia towards the enhanced medical  

allowance and hydro allowance.  

In the cross-examination, the witness  

would state, inter alia, as follows:  

The Executive Engineer is the appointing  

authority so far as NMR workers were  

concerned. The VSS was introduced in all the  

units of the Corporation in the State. The  

Scheme was not notified in the Gazette by the

51  

Government or by the Corporation. There was  

no request from the side of the applicants to  

implement the VSS or VRS nor there was any  

proposal from the Rengali Head to reduce the  

number of NMRs by implementing the VSS. To  

reduce extra manpower, the VSS was  

introduced. The Scheme was not published in  

any newspaper for the general public. Witness  

states that he does not know the applicants  

personally. He did not say which applicant  

was paid how much wages. He cannot say without  

referring to the application and acceptance  

letter, from which date the applications were  

accepted. In Exhibit ‘G’, neither Shri R.C.  

Kuntia nor Shri D.N. Padhi has signed  

although their names are there. He does not  

know the witnesses who had signed in the  

applications in B Series. All the applicants  

signed in the presence of the Executive  

Engineer, in Exhibit B series. Then, he again  

says, he cannot say in whose presence the  

applicants signed in Exhibit B Series. He  

cannot say who has given the application form  

to the applicants in Exhibit B Series. He  

denies that signatures of the applicants were  

obtained forcibly.

52  

OPW2-Management Witness No.2, is the  

Manager of a Division. He joined as Manager  

on 16.04.2002. Prior to this, he was working  

as the Deputy Manager with the Corporation.  

While he was working as SDO, 63 NMRs were  

working under him. To his knowledge, now, 21  

NMRs were working under the appellants. Other  

42 persons have separated themselves by  

obtaining VSS. By the time the VSS was  

introduced. The objective of the Scheme was  

widely circulated. The applicant took the   

application form for VSS after signing on a  

sheet of paper.  

He states it to be incorrect that  

signatures were taken forcibly.  

In cross-examination, he states as  

follows:  

He came to Rengali in the year 1999. He  

has no personal acquaintance with the 42  

applicants. He cannot say if any high-level  

discussion was made or not. The information  

was notified on the office board. The VSS  

Notification was made in English. All the  

NMRs were not conversant with English. The  

Notification was not published in Oriya. The

53  

condition of VSS was incorporated in the  

application form and the applicants and other  

NMRs were not given the Scheme for their  

information separately. At present, he  

cannot say as to from which date applicants  

started receiving application forms. He has  

not assisted the applicants in filing the  

application form. He can identify witnesses  

who have signed the application form of the  

applicants. Then, he says, he cannot say who  

is Sahdev Raut, in what capacity he had  

signed. Below the signature of the witnesses,  

their designation and date have not been  

given. He has no knowledge about the pendency  

of the case in the Supreme Court. He has no  

knowledge about the withdrawal of the  

application by AW1. He says, it is not a fact  

that the signatures of the applicants were  

taken forcibly giving impression that their  

services will be regularized.  

(Emphasis supplied)  

THE DOCUMENTARY EVIDENCE  

54. The documentary evidence, which is produced by the  

applicants, is as follows:  

54  

a. The OER (Transfer of Undertaking, Assets, Liabilities,  

Proceedings and Personnel) Scheme Rules, 1996;  

b. The Order passed by the High Court in O.J.C. No. 2420  

of 1989, which we have already adverted to;  

c. The letter written by the first applicant dated  

01.06.2000, which we have already extracted;  

d. The Gazette Notification dated 01.04.1996 regarding  

change over from the Government.  

55. As far as documentary evidence of the appellants is  

concerned, they are as follows:  

Exhibit ‘A’ is the Notification dated  

27.04.2000 constituting the Recommending  

Committee. It also contains the Scheme itself.  

Exhibit ‘A/I’ is the Notification dated 17.06.2000  

indicating that the VSS will be enforced for a  

period of six days from 19.06.2000 to 24.06.2000.  

Exhibit ‘A/II’ is the Notification dated  

28.01.2001 indicating that the VSS will be  

enforced for a period of one month from 30.01.2001

55  

to 01.03.2001. Exhibit ‘B Series’ are the  

applications made by the applicants. Exhibit ‘C’  

is acceptance of the VSS application which is seen  

marked with objection. Exhibit ‘D’ is the order  

authorizing the AGM to accept the applications.  

Exhibit ‘E Series’ are the payment sheets showing  

payment of the legal dues and ex gratia in account  

payee cheques. Exhibit ‘F’ is letter dated  

15.04.2000 by the President of the Union seeking  

discussion, inter alia, about enhanced amount of  

VRS by NMR employees. Exhibit ‘G’ purports to be  

the Minutes of the Discussion held between the  

Management and the Union on 20.05.2000 (marked  

with objection). Exhibit ‘H’ is again letter dated  

27.04.2000 containing points for facilitating the  

smooth implementation of the Scheme. Exhibit ‘J’  

purports to be the acknowledgment of VSS of NMR  

employees, Sub-Division II. Exhibit ‘K’ purports  

to be the Office Order dated 13.06.2000 relieving  

the applicants.

56  

FINDINGS OF THE LABOUR COURT  

56. The Labour Court found that the application under  

Section 33A of the Act is maintainable. This is on the basis  

that, had the VSS been in the true sense, there would not  

have been any illegality. It is found that the applicants  

have challenged the Scheme as illegal and the applications  

were obtained by misrepresentation. On that basis, it was  

found that the application was maintainable. Thereafter,  

the Labour Court goes through the evidence and has recorded  

the following findings:  

“9. I have gone through the evidence of  

witnesses examined on either side so also the  

documents exhibited. There was no demand from  

the side of the complainants nor there was any  

proposal from the side of the officials for  

introduction of Voluntary Separation Scheme  

or Voluntary Retirement Scheme. Similarly  

the SDO and the Executive Engineer of OHPC  

have never recommended for reducing the staff  

strength. Admittedly Voluntary Separation  

Scheme was not published widely for the  

information of NMRs and therefore it cannot  

be exported that the NMRs signed the  

Voluntary Separation Scheme applications  

knowing its content and consequences. On a  

reference to Ext.3 it is clear that A.W.1  

though submitted application for Voluntary  

Separation Scheme either under pressure or

57  

under a wrong notion he has withdrawn the same  

on 1.6.2000 but the application of Sri Sahoo  

was not returned back and he was given the  

Voluntary Separation Scheme. Therefore I am  

of the considered view that the Voluntary  

Separation Scheme was not the choice of the  

complainants but it was thrust upon the  

complainants and therefore amounts to  

refused of employment to the guise of  

Voluntary Separation Scheme.  

10. In view of the discussions made  

above, the action of the management opposite  

parties in implementing the Voluntary  

Separation Scheme forcibly or by  

misrepresentation is illegal and  

unjustified. The complainants are entitled  

to be reinstated in service and are deemed to  

be continuing in service from the date of the  

Voluntary Separation Scheme was implemented.  

The management opposite parties have paid  

certain amount to the complainants being the  

benefits under Voluntary Separation Scheme.  

The complainants will be eligible to get 70%  

(seventy percent) back wages and the amount  

already paid by the management to the  

complainants towards the Voluntary  

Separation Scheme benefit shall be adjusted.  

The Award shall be implemented by the  

opposite parties within one month from the  

date of its Notification for publication.”  

57. The substance of the findings is contained in  

paragraph-9 (extracted above). It is found that there was  

no demand from the applicants. There was no proposal from  

the officials for introduction of the Scheme. The SDO and

58  

the Executive Engineer of the Corporation never recommended  

for reducing staff strength. Admittedly, the Scheme was not  

published widely for the information of NMRs. Reference is  

made to the application made by AW1, which we have  

extracted. On this finding, the Labour Court finds that the  

Scheme was not the choice of the applicants but it was thrust  

upon the applicants. This amounted to refusal of employment  

in the guise of the Scheme. On this basis, the relief was  

granted. The relief consisted of directing reinstatement  

in service and the applicants were deemed to be working  

continuously in service from the date of the Scheme being  

implemented. Noticing that certain amounts had been paid  

to the applicants and directing that the applicants would  

get 70 per cent of the back-wages, the amounts were directed  

to be adjusted.  

58. It may be necessary to notice one development which  

took place in the High Court. In the High Court, when  

application was made under Section 17B of the Act, the  

applicants were directed to deposit the amount which they  

received. 28 applicants deposited the amount which they

59  

received under the Scheme. It is not disputed that the said  

amounts are with the appellants.  

THE JUDGMENT IN O.J.C. NO. 2420  

59. In the first place, we must notice the judgment of the  

High Court of Orissa rendered in O.J.C. No. 2420 of 1989.  

In the same, the Court, inter alia, held as follows:  

“The petitioner represents a large  

number of N.M.Rs. who were employed in  

Rengali Hydro Electric Project and the like  

projects. Presently, they are under the  

Energy Department of the Government of  

Orissa. The prayer of the petitioner union is  

to direct the opposite parties to regularize  

the services of the N.M.R. employees and to  

pay them emoluments equal to those of regular  

employees discharging the same nature of  

work.  

We need not traverse the legal ground as  

the same has been duly taken note of in a  

recent decision of this court in Balaram  

Sahu-v-State of Orissa, 74(1992) CLT 367 and  

following what was stated in that judgment  

the facts of the two cases being similar. We  

direct regularization of those members of the  

union who have served continuously for a  

period of five years by today. The opposite  

parties shall find out with reference to  

Annexure-7 or any other document available to  

them as to which of the members of the  

petitioner-union have completed five years

60  

of continuous service by today. It may be  

pointed out here that in Annexure-7, details  

have been given about 281 (though the last  

serial number is 280 in Annexure-7, Shri Das  

states that sl. No. 114 was mentioned twice  

by mistake) persons. Learned counsel states  

that details of 85 workmen represented by the  

petitioner-union who have been transferred  

to different divisions could not be made  

available to the court. …”  

(Emphasis supplied)  

60. The court went on, no doubt, to consider the pay to be  

given to the NMR workers. The court proceeded to hold “there  

was no reason for discriminating the NMR employees from  

other regular employed persons”.   

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

61. The Civil Appeal, which was carried against the same,  

was finally decided by this Court in State of Orissa and  

others v. Balaram Sahu and others 11 . The judgment was  

rendered on 29.10.2002. From the perusal of the said  

judgment, we find that this Court did not deem it fit to  

                                                           11 (2003) 1 SCC 250

61  

interfere with the judgment of the High Court as such. This  

is what this Court said:  

“14. For all the reasons stated above,  

the appeals are allowed and the orders  

of the High Court are set aside insofar  

as the pay equal to that of the regular  

employed staff has been ordered to be  

given to the NMR/daily-wager/casual  

workers, as indicated above, to which  

they will not be eligible or entitled,  

till they are regularized and taken as  

the permanent members of the  

establishment. For the period prior to  

such permanent status/regularization,  

they would be entitled to be paid only  

at the rate of the minimum wages  

prescribed or notified, if it is more  

than what they were being paid as ordered  

by this Court in Jasmer Singh  

case [(1996) 11 SCC 77 : 1997 SCC (L&S)  

210]. There will be no order as to  

costs.”  

(Emphasis supplied)  

62. Thus, the judgment, insofar as it related to the  

direction to regularize the members of the writ  

petitioners’ union, became final on 29.10.2002.   

63. The judgement of the High Court was dated 28.10.1992.  

Thus, we proceed on the basis, therefore, that the  

applicants, were members of the writ petitioners’ union in

62  

O.J.C. No. 2420 of 1989, who became entitled under the  

judgment of the High Court which was affirmed by this Court  

as regards the direction for regularization provided they  

had served continuously for a period of five years as on  

28.10.1992, i.e., the date of the judgment of the High  

Court.  

64. According to the learned counsel for the appellants,  

in fact, a Scheme was floated to effectuate regularization  

as ordered by the court. It appears to be their case that  

the appellants also floated the VSS.  

65. Going by the judgment of the High Court in O.J.C.  

No.2420 of 1989, those members of the writ petitioners’  

union who served continuously for a period of five years  

till 28.10.1992 (date of judgment) were entitled to  

regularization as the High Court had directed  

regularization. They had indeed acquired a legal right.  

This was undoubtedly subject to the lis pending in this  

Court. A period of five years continuous service prior to  

28.10.1992 would mean those employees who were members of

63  

the writ petitioners’ union before the High Court in O.J.C.  

No. 2420 of 1989, would be employees who were appointed on  

or before 27.10.1987. In fact, going by the deposition of  

applicants, it would appear that AW1 claimed to be working  

since 1988. This means AW1 apparently was not one who was  

covered by the direction for regularization by the High  

Court as he was working from 03.06.1988. He would complete  

five years only by 02.06.1993. Though, in the application,  

there is reference to O.J.C. No.1527 of 1991, in his  

deposition, he refers only to O.J.C. No.2420 of 1989. No  

doubt, as far as AW2 to AW4, going by the dates given, which  

we have already indicated, if they had worked continuously  

from the dates, they would be covered by the order of the  

High Court for regularization. We are considering the VSS  

which was introduced during the pendency of the litigation  

before this Court. This means that while they had acquired  

a right under the direction of the High Court, the sword  

of Damocles over-hanged them in the form of the uncertainty  

confronting them as the direction in their favour could be  

either confirmed or overturned by this Court.   

64  

66. In other words, the direction in their favour had not  

become final. We have stated this only to highlight that  

if the VSS was floated and it was found sufficiently  

attractive, it would not be unnatural for them or unfair  

to them to take advantage of the same. In this regard, the  

appellants have projected before us that out of the 281 NMRs  

and Contingent Khalasis who opted for the Scheme, the  

Corporation accepted the applications for 271 workers. It  

is only the 90 applicants, it is pointed out, who have made  

a somersault and sought to resile from the applications  

which were made by them.  

67. The application under section 33A of the Act was filed  

after several months from the date of receiving the ex  

gratia payment. There is also the case of the appellants  

that there was a letter from the President of the Workers’  

Union of 15.04.2000, which was before the circulation of  

the Scheme, requesting for enhancing the amount for VRS for  

the NMR workers. There are Minutes of the discussion held  

on 20.05.2000 between the Management and the  

representatives of the Union. The Minutes indicate that the

65  

issue relating to the VSS, which was taken up for  

discussion, was – “(1) Enhanced amount of VSS for the NMR  

employees”.  

68. It may be true that the Notification dated 27.04.2000  

was published in English. So were the further Notifications  

dated 17.06.2000 and 28.01.2000.   

69. There is no dispute that the applicants have been  

favoured with an amount of Rs.1,25,000/- which is the amount  

which is contemplated under the Scheme besides other  

amounts. These amounts have been paid by cheques into the  

accounts of the applicants. The applications which have  

been produced before us appear to be witnessed by two  

witnesses. This is as per the terms of the Notification  

which contemplates that the application must be signed by  

two witnesses. So also, in regard to the payments which are  

effected, the authorization appears to be supported by the  

signatures of two witnesses.

66  

70. No doubt, as far as this aspect is concerned, the  

applicants do not dispute that they have received the  

payments. In fact, they will not be in a position to  

establish that they have not received the payments. They  

would brush aside the payments on the basis that they were  

paid some amounts which they thought they were entitled to  

on the basis that they were being regularized. A sum of  

Rs.1,25,000/- plus other benefits was paid to all the  

applicants. This amount happens to be also the amount which  

was contemplated under the VSS.   

71. None of the applicants have a case that the signatures  

in the applications have not been appended by them. They  

do not appear to have a case about the witnesses as such  

except as we have noticed in the evidence. It may be true  

that one applicant out of the 90 has written a letter  

purporting to withdraw. It is noteworthy that other 89  

applicants had not made any application seeking to  

withdraw. In the application filed by one worker (First  

Applicant), which we have extracted, he would state that  

he was threatened and coerced and, being afraid, he was made

67  

to sign the application for VSS against his wish. He never  

intended to take the VSS and he was told that he would be  

forced to dire striats. No doubt, his application is dated  

01.06.2000, which is the very next date of the making of  

his application. It may be remembered that AW1 was not a  

person who was entitled even to the benefit of the order  

passed by the High Court as he had not completed five years  

as on the date of the judgment. There can be no similarity  

between a case of threat or coercion on the one hand and  

fraud.    

72. The manner in which fraud was perpetuated, the exact  

nature of the fraud and person or persons by whom the fraud  

was perpetuated, are found missing in the pleadings, as  

noticed by us. As far as the first applicant is concerned,  

the prevarication in his case is palpable and discernible  

from the somersault that he carried out in the pleading in  

the application in comparison with his case in the letter,  

which he wrote seeking to withdraw from the Scheme, on  

01.06.2000, wherein the case was built around alleged  

threat and coercion. It may be noticed that coercion is

68  

another element which is antithetical to free consent and  

is separately dealt with under Section 15 of the Contract  

Act. He minces no words after employing the expression  

“threat, coercion”, when he declared that being afraid, he  

was made to sign the VSS against his wish. He was threatened  

with being forced into dire straits unless he signs the  

application. Conspicuous by its absence, in his letter  

dated 01.06.2000, is even the faintest whisper about fraud  

of any kind. This is the application dated 01.06.2000. It  

must be noted it is on the very next day after he made the  

application claiming the VSS on 31.05.2000. The application  

under Section 33A of the Act, on the other hand, came to  

be filed much later, i.e., on 19.04.2001, after several  

months. In the pleading, in paragraph-9 of the application,  

as to who defrauded amongst the authorities, is not pleaded.  

It must be noted that the persons arrayed in the application  

are the General Manager (Electrical); Manager  

(Electrical); Maintenance Division; Manager (Electrical),  

Protection and Control Division; Director (HRD) of the  

Corporation. It is not even mentioned as to who amongst them

69  

committed the alleged act of fraud. No doubt, the fraud  

could be committed by either the opposite parties or anyone  

action at their behest. If so, it should have been pleaded.  

There is no such plea forthcoming. The substance of the plea  

is that for regularization, which we gather, on a liberal  

reading of the application, being one under the Act and  

bearing in mind also the need to be not far too strict,  

enmass signatures of workers were taken on certain papers  

and by showing undue influence. The pleas of fraud and undue  

influence are distinct and separate. It will be noticed that  

the case of coercion and threat does not make its appearance  

in the pleading.   

73. Coming to the oral evidence, AW1, as noticed by us,  

states that he and other applicants were given to understand  

that their services will be regularised and signatures were  

taken on the VSS form. He further says that his signatures  

and that of the other applicants were taken by appellants  

forcibly giving an impression that their services will be  

regularised. As has been noticed by us, there is no case

70  

of force which is used in paragraph-9 of the application,  

which constitutes the sole pleading.   

74. Passing in to AW2, he would say that the appellants gave  

them an impression that their services would be regularised  

and, at the first instance, their signature was taken on  

a blank paper and subsequently on a form. Subsequently, he  

came to know that it is meant for the Scheme and he drew  

attention of the authorities (There is no mention about  

before whom he ventilated his objection. No written  

document is forthcoming). He would state that the  

signatures were obtained at the Divisional Level giving the  

same impression. In cross, he says he has no knowledge about  

VSS prior to his refusal of employment. It is further stated  

that it is not a fact that the signatures of the applicants  

were not taken forcibly and fraudulently by the appellants.  

This is about all that AW2 has to say. The inconsistency  

between “fraudulently” and “forcibly” is self-evident and  

“forcibly” is not vaguely pleaded.  

71  

75. AW 3 would state that with the instigation of the higher  

authorities, their signatures in the VSS were taken  

forcibly. In the similar way, the signatures of all the  

applicants were taken. No doubt, he speaks about the notice  

not being published nor it being circulated amongst the  

workers. It was not published in any local newspaper. In  

cross-examination, he would state that it is not a fact that  

he and other applicants were not refused employment  

forcibly nor the condition of service changed. On  

conspectus of his evidence, his deposit9ion is only to the  

effect that the application of AW3 and other applicants were  

secured forcibly. This is completely incompatible with the  

case of fraud which is pleaded and there is no pleading for  

force being used as we have noticed.  

76. Coming to the last witness AW4, he would state that  

their signature was taken on an application and three to  

four blank papers. They were given to understand that their  

services would be regularised. But in cross-examination,  

he would state that the Executive Engineer and HR have

72  

compelled him and others to sign. The complete  

prevarication is palpable and does not require any  

elucidation. This would qualify as a case where the pleading  

does not match up to the requirements of the case. The state  

of the evidence, which is adduced, makes matters even worse.   

77. A perusal of the documentary evidence, produced by the  

applicants, would show that they have nothing to do about  

establishing the case set up by the applicants. On the other  

hand, the protest letter dated 01.06.2000 sent by the  

firstly applicant completely demolishes the case as pleaded  

in the application. It is noteworthy that apart from the  

first applicant, none of the 89 other applicants have  

registered their protest about the VSS. Though there is  

mention about a letter sent to the Conciliation Officer,  

it is not brought on record.  

78. As against this, the appellants have produced a wealth  

of documentary evidence before the Labour Court. Exhibits  

‘A’ to ‘K’ were produced. They included the applications  

which were signed by the applicants and two witnesses; the

73  

VSS Scheme itself; the document evidencing the  

authorisation of payments of the amounts under the VSS  

Scheme; the Charter of Demand before the Management for  

discussion-Exhibit ‘F’. The Minutes of the Discussion of  

the meeting which was held on 20.05.2000. The Minutes would  

indicate that regularisation of 43 NMR workers out of total  

of 343 was to be considered in terms of the Scheme for  

regularisation of the NMR workers after the VSS/VRS Scheme,  

is implemented in respect of 300 workers. This is item no.1.  

The next item no.2 dealt with enhanced amount of VSS for  

NMR employees. After a detailed discussion, it was mutually  

decided that this was not possible.   

79. Item nos. 3 and 4 would show that it was decided that  

43 NMR employees will be regularised on the basis of skill  

and qualification, seniority in terms of regularisation of  

NMR workers.  

80. Though there was a direction by the High Court to direct  

all the employees of the writ petitioners’ union, the  

matters stood challenged before this Court in Civil Appeal  

and as on date when VSS Scheme was floated and the

74  

regularisation scheme also was enforced, this Court had not  

yet rendered its judgment. Upholding the direction to  

regularise, the decision of this Court was rendered only  

in the year 2002.  

81. Having regard to the materials, we would think,  

therefore, that the applicants have failed to plead and  

prove, and on the yardstick of it being a case of no  

evidence, the Award became infirm and was liable to be  

interfered with. At any rate, the findings, which have been  

rendered by the Labour Court, which is to the effect that  

it was not the choice of the applicants and was thrust upon  

the complainants amounting to refusal of employment, is  

completely insupportable both in law and on facts. The  

finding that there was no demand from the side of the  

complainants for the introduction of the VSS is completely  

irrelevant, as, as an employer, it was certainly open to  

devise such policy which was in the best interest of the  

Corporation. Validity of the Scheme did not depend upon the  

Scheme having its origin in a demand by the workmen. The  

finding that there was no proposal for the Scheme or

75  

recommendation for reducing the staff strength was wholly  

irrelevant. It is the factum of the Scheme being propounded,  

in fact and implemented elsewhere as well, which should have  

been considered by the Labour Court.  

82. We noticed that in paragraph-9 of the application after  

stating about getting the signatures enmass on certain  

papers under the pretext of regularisation and by showing  

undue influence of regularisation that since the projects  

were temporary and they are to be regularised in the  

Corporation in regular cadre, the old job will come to an  

end and a new job in the Corporation would start afresh for  

which workmen without understanding the implication of the  

application, have signed on such application. From the  

evidence which consists of the testimony of AW1 to AW4, as  

far as this aspect is concerned, there is no evidence at  

all. It is true, in the response of the appellants, it has  

been pleaded in paragraph-8 that a Scheme has been displayed  

on the notice board and the same has been widely circulated  

for information of all concerned. However, the witness for  

the appellants, in evidence, has deposed that the VSS was

76  

not published in any newspaper. It is stated that it is not  

published in any newspaper for the information of the  

general public. He also does say that it is not notified  

in the Gazette either by the Government or by the  

Corporation. The second witness for the appellants also  

states that implementation was notified on the Office  

Notice Board. It was made in English and the NMRs were not  

conversant with English. Nothing was published in Oriya.  

We have also undoubtedly taken note of the deposition of  

AW1 to AW4 which appears to project the case of  

non-publication of the Scheme. In this regard, we must  

notice the following features:  

1. The applicants themselves lay store by the judgment of  

the High Court in the earlier Writ Petition O.J.C.  

No.2420 of 1989. Therein, the petitioner was the  

Rengali Power Projects Workers’ Union.  

2. Apparently, the applicants claimed to be members of the  

said Union. AW1, in fact, in his deposition, also  

refers to the order passed in O.J.C. No. 2420 of 1989  

and that the appellants did not comply with the

77  

direction of the High Court and appeal is pending in  

this Court. Therefore, applicants must be understood  

as being members of the Union. They must also be treated  

as aware of the pendency of the civil appeal in this  

Court.   

83. It is pertinent to note, in this regard that there is  

evidence (OPW1), to show that before implementation of the  

VSS, discussion took place on 10.04.2000 and 15.04.2000.  

Most importantly, Exhibit ‘F’ is a letter sent by one Mr.  

R.C. Kuntia dated 15.04.2000, written to the  

Chairman-cum-Managing Director of the  

appellant-Corporation that he stood elected as the  

President of the Union. They had some important problems  

to be discussed with the Management. He requested for a date  

and time to discuss the problems. Under the heading “Agenda  

of the Discussion”, Item No.2 was “Enhance the amount of  

VRS for the NMR employees”. This document was, in fact,  

marked without any objection through OPW1. The discussions  

took place on 20.05.2000. Item no.2 was about enhancing

78  

amount of VSS for NMR workers. It was decided, after a  

detailed discussion that it was not possible. Therefore,  

the only finding possible is that the Union to which the  

applicants belonged, wanted the VSS amount to be enhanced.  

This aspect has not been considered at all by the Labour  

Court. It is true that the document was marked as Exhibit  

‘G’ with objection. In the cross-examination of the  

witness, through whom Exhibit ‘G’ was marked, there is no  

suggestion that such a discussion did not take place or the  

discussion did not relate to the enhanced payment under the  

VSS. But it is true that OPW1 admits that in Exhibit ‘G’,  

the two Office Bearers have not signed though their names  

are appearing. However, there is no cross-examination about  

discussion taking place prior to implementation.  

Therefore, this would, at any rate, show that the  

applicants, who were members of the Union, were fully aware  

of the VSS. There is no case for them that they were misled  

or defrauded by their own Union Leaders. A perusal of the  

Award would show that apart from stating that Exhibits ‘A’  

to ‘K’ were marked on behalf of the appellants and Exhibits

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‘1’ to ‘4’ were marked on behalf of the applicants, there  

is no discussion about these documents at all. Thus, this  

is a case where documentary evidence adduced is by  

appellants is ignored by the Labour Court.   

84. The finding that it cannot be accepted that the NMRs  

signed knowing its contents and consequences, amounts to  

nothing short of a perverse finding. The pleading and the  

evidence, does not support in the least, such a finding.  

On the other hand, the weight of evidence should have been  

borne in mind by the Labour Court as completely eliminating  

the possibility. It is surprising that the Labour Court  

should find solace in the letter written by the first  

applicant dated 01.06.2000 to find that he submitted the  

application either under pressure or under wrong notion.  

In fact, the very concept of wrong notion is missing in the  

letter dated 01.06.2000(See paragraph 17 for the letter).  

The Labour Court appears to be oblivious also to the fact  

that there is only one such letter. Even taking it at its  

face value, there is no letter written by any of the other

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89 applicants. The Labour Court also lost sight of the fact  

that the applicants were favoured with amounts under the  

Scheme. By way of cheque the amounts stood credited in their  

accounts. The application is moved only after several  

months of receiving the benefits.   

85. We are, therefore, of the clear view that no case was  

made out before the Labour Court for invoking Section 33A  

read with Section 33 of the Act. In the case of Writ of  

Certiorari, no doubt, the Court also bears in mind that it  

is not axiomatic, or that upon a finding of illegality, a  

court is bound to interfere. The court may still exercise  

its discretion and decline jurisdiction unless there is  

manifest injustice. Bearing in mind this principle also,  

we are inclined to think that the appellants have made out  

a case of manifest injustice if the Award is allowed to  

stand. Large sums were spent by a Public Sector Corporation  

in seeking to trim its work force. The workers voluntarily  

on our finding, accepting the terms of the Scheme, receiving  

the benefits, and thereunder and got separated.

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Implementing the Scheme would mean reinstatement of the  

workers and that too with 70 per cent back-wages, when there  

was absolutely no warrant for the same.  

86. There is only one aspect which remains. During the  

pendency of the Writ Petition filed by the appellants in  

the High Court, 28 applicants deposited the amount which  

they have received from the appellants so that application  

under Section 17B of the Act could be pursued. This amount  

must be directed to be returned to the concerned workmen  

who had made the deposit and we also feel that the amount  

should be returned with interest.  

87. Accordingly, the appeal is allowed and the judgment of  

the High Court is set aside. The Award passed by the Labour  

Court is set aside and the application filed by the  

applicants is dismissed. However, the appellants will  

return the entire amount deposited with them by the 28  

applicants with interest at the rate of 8 per cent per annum  

from the date of deposit till the date of payment. The amount  

shall be returned back with interest as above to the

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applicants concerned within a period of two months form the  

date of receipt of copy of this judgment.  

88. There shall be no order as to costs.  

..................J.  

                  (SANJAY KISHAN KAUL)  

..................J.  

                                   (K.M. JOSEPH)  

New Delhi,  

September 12, 2019.