General Manager, Electrical Rengali Hydro Electric Project, Orissa and Others vs Sri Giridhari Sahu and Others

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

1.3 The jurisdictional error may be from failure to observe the limits of its jurisdiction. It may arise from the procedure adopted by the body after validly assuming jurisdiction. It may act in violation of principles of natural justice. The body whose decision which comes under attack may decide a collateral fact which is also a jurisdictional fact and assume jurisdiction. Such a finding of fact is not immune from being interfered with by a Writ of Certiorari. As far as the finding of fact which is one within the jurisdiction of the court, it is ordinarily a matter ‘off bounds’ for the writ court. This is for the reason that a body which has jurisdiction to decide the matter has the jurisdiction to decide it correctly or wrongly. It would become a mere error and that too an error of fact. However, gross it may amount to, it does not amount to an error of law. An error of law which becomes vulnerable to judicial scrutiny by way of Certiorari must also be one which is apparent on the face of the record. [Para 29] [315-D-F]

1.4 As to what constitutes an error apparent on the face of the record, is a matter to be decided by the court on the facts of each case. A finding of fact which is not supported by any evidence would be perverse and in fact would constitute an error of law enabling the writ court to interfere. If the overwhelming weight of the evidence does not support the finding, it would render the decision amendable to Certiorari jurisdiction. This would be the same as a finding which is wholly unwarranted by the evidence. [Para 29] [315-F-H]

1.5 In the case of Writ of Certiorari, no doubt, the Court also bears in mind that it is not axiomatic, or that upon a finding of illegality, a court is bound to interfere. The court may still exercise its discretion and decline jurisdiction unless there is manifest injustice. The appellants have made out a case of manifest injustice if the Award is allowed to stand. Large sums were spent by a Public Sector Corporation in seeking to trim its work force. The workers voluntarily accepting the terms of the Scheme, receiving the benefits thereunder, got separated. Implementing the Award would mean reinstatement of the workers and that too with 70 per cent back-wages, when there was absolutely no warrant for the same. [Para 85] [341-E-G]

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

M/s. Perry and Co. Ltd. v. P.C. Pal, Judge of the Second Industrial Tribunal, Calcutta and others AIR 1970 SC 1334 : [1969] SCR 976 ; T.C. Basappa v. T. Nagappa AIR 1954 SC 440 : [1955] SCR 250 ; Hari Vishnu Kamath v. Ahmed Ishaque & Ors. AIR 1955 SC 233 : [1955] SCR 1104 ; Dharangadhara Chemical Wor k s Ltd. v. State of Saurashtra and others AIR 1957 SC

264 : [1957] SCR 152 ; Mukand Ltd. v. Mukand Staff & Officers’ Association (2004) 10 SCC 460 : [2004] 2 SCR 951 – relied on.

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

2.1 It was during the pendency of the proceeding before the Labour Court on the reference regarding the availability of certain benefits to the workers that the applicants alleged denial of employment. They alleged that in essence, they were duped into submitting applications as if they were intended to secure the benefit of the VSS whereas they put their signatures on the blank papers not comprehending such use. [Para 32] [317-B-C]

2.2 As per Order VI Rule 4 CPC, in a civil suit, if the plaintiff alleges fraud, misrepresentation or undue influence, he is obliged to give particulars. An allegation of fraud is a matter of a grave nature. So is the allegation of undue influence and misrepresentation. The intention underlying Order VI Rule 4 is that the opposite party is to be put on sufficient notice as to the case which he is called upon to meet. The law loathes, parties to the lis being taken by surprise resulting in the violation of the basic principle of justice that a party should be able to effectively meet the case set up against him. [Para 39] [318-F-G]

2.3 A perusal of the definition of the word “fraud”, as defined in Section 17 of the Contract Act, would reveal that the concept of fraud is very wide. It includes any suggestion, as a fact, of that which is not true, by a person who does or does not believe it to be true. It may be contrasted with Section 18(1) of the Contract Act which, inter alia, defines “misrepresentation”. It provides that it is misrepresentation if a positive assertion is made by a person of that which is not true in a manner which is not warranted by the information which he has. This is despite the fact that he may believe it to be true. In other words, in fraud, the person who makes an untruthful suggestion, does not himself believe it to be true. He knows it to be not true, yet he makes a suggestion of the fact as if it were true. In misrepresentation, on the other hand, the person making misrepresentation believes it to be true. But the law declares it to be misrepresentation on the basis of information which he had and what he believed to be true was not true. Therefore, the representation made by him becomes a misrepresentation as it is a statement which is found to be untrue. Fraud is committed if a person actively conceals a fact, who either knows about the fact or believes in the existence of the fact. The concealment must be active. It is here that mere silence has been explained in the Exception which would affect the decision of a person who enters into a contract to be not fraud unless the circumstances are such that it becomes his duty to speak. His silence itself may amount to speech. A person may make a promise without having any intention to perform it. It is fraud. The law further declares that any other act fitted to deceive, is fraud. So also, any act or omission, which the law declares to be fraudulent, amounts to fraud. Running as a golden trend however and as a requirement of law through the various limbs of Section 17 of the Contract Act, is the element of deceit. A person who stands accused of fraud be it in a civil or criminal action, must entertain an intention to commit deception. Deception can embrace various forms and it is a matter to be judged on the facts of each case. It is, apparently, on account of these serious circumstances that fraud has on a legal relationship or a purported legal relationship that the particulars and details of fraud is required if pleaded in a civil suit or a proceeding to which the CPC applies. [Para 44] [321-A-G]

2.4 An application under Section 33A of the Act is not a civil suit. The provisions of Order VI Rule 4 of the CPC, as such, is not applicable to proceedings under the Act. While the provisions of the CPC may not apply, the salutary principles embodied would apply. This is for the reason that the purpose of pleading, be it in a civil suit or other proceeding, is to allow the opposite party to meet the case of his opponent to ready the evidence to be adduced and marshal the law in support of its case. In the present case, there is no sufficient pleading in regard to fraud. The allegation as to undue influence is totally without any basis in the pleading. The VSS, if availed of by an employee voluntarily, amounts to a contract. [Paras 46, 50 and 51] [322-G; 323-A-B; 324-F-G]

Management of Hindustan Steel Limited v. Workmen and others AIR 1973 SC 878 : [1973] 3 SCR 303 ; Bharat Iron Works v. Bhagubhai Balubhai Patel AIR 1976 SC

98 : [1976] 2 SCR 280 ; Bank of India and others v. O.P. Swarnakar and others (2003) 2 SCC 721 : [2002]

5 Suppl. SCR 438 – relied on.

3.1 The applicants, were members of the writ petitioners’ union in O.J.C. No. 2420 of 1989, who became entitled under the judgment of the High Court which was affirmed by this Court as regards the direction for regularization provided they had served continuously for a period of five years as on 28.10.1992, i.e., the date of the judgment of the High Court. The judgment of the High Court in O.J.C. No. 2420 of 1989 held that those members of the writ petitioners’ union who served continuously for a period of five years till 28.10.1992 (date of judgment) were entitled to regularization as the High Court had directed regularization. They had indeed acquired a legal right. This was undoubtedly subject to the lis pending in this Court. A period of five years continuous service prior to 28.10.1992 would mean those employees who were members of the writ petitioners’ union before the High Court in O.J.C. No. 2420 of 1989, would be employees who were appointed on or before 27.10.1987. In fact, going by the deposition of applicants, it would appear that AW1 claimed to be working since 1988. This means AW1 apparently was not one who was covered by the direction for regularization by the High Court as he was working from 03.06.1988, as he would complete five years only by 02.06.1993. [Paras 63 and 65] [333-F-G; 334-A-C]

3.2 So far as AW2 to AW4, going by the dates given, if they had worked continuously from the dates, they would be covered by the order of the High Court for regularization. The direction in their favour had not become final. Thus, if the VSS was floated and it was found sufficiently attractive, it would not be unnatural for them or unfair to them to take advantage of the same. In this regard, the appellants have projected that out of the 281 NMRs and Contingent Khalasis who opted for the Scheme, the Corporation accepted the applications for 271 workers. It is only the 90 applicants, it is pointed out, who have made a somersault and sought to resile from the applications which were made by them. [Paras 65 and 66] [334-C-F]

3.3 The application under section 33A of the Act was filed after several months from the date of receiving the ex gratia payment. It is also the case of the appellants that there was a letter from the President of the Workers’ Union of 15.04.2000, which was before the circulation of the Scheme, requesting for enhancing the amount for VRS for the NMR workers. There are Minutes of the discussion held on 20.05.2000 between the Management and the representatives of the Union. The Minutes indicate that the issue relating to the VSS, which was taken up for discussion, was – “(1) Enhanced amount of VSS for the NMR employees”. It may be true that the Notification dated 27.04.2000 was published in English. So were the further Notifications dated 17.06.2000 and 28.01.2000. There is no dispute that the applicants have been favoured with an amount of Rs.1,25,000/- which is the amount which is contemplated under the Scheme besides other amounts. These amounts have been paid by cheques into the accounts of the applicants. The applications which have been produced appear to be witnessed by two witnesses. This is as per the terms of the Notification which contemplates that the application must be signed by two witnesses. So also, in regard to the payments which are effected, the authorization appears to be supported by the signatures of two witnesses. [Paras 67, 68 and 69] [334-G-H; 335-A]

3.4 None of the applicants have a case that the signatures in the applications have not been appended by them. It may be true that one applicant out of the 90 has written a letter purporting to withdraw. It is noteworthy that other 89 applicants had not made any application seeking to withdraw. In the application filed by one worker (First Applicant), he would state that he was threatened and coerced and, being afraid, he was made to sign the application for VSS against his wish. He never intended to take the VSS and he was told that he would be forced to dire striats. No doubt, his application is dated 01.06.2000, which is the very next date of the making of his application. It may be remembered that AW1 was not a person who was entitled even to the benefit of the order passed by the High Court as he had not completed five years as on the date of the judgment. There can be no similarity between a case of threat or coercion on the one hand and fraud. [Para 71] [335-E-H; 336-A]

3.5 The manner in which fraud was perpetuated, the exact nature of the fraud and person or persons by whom the fraud was perpetuated, are found missing in the pleadings. In the present case, the pleading does not match up to the requirements of the case. The state of the evidence, which is adduced, makes matters even worse. the protest letter dated 01.06.2000 sent by the first applicant completely demolishes the case as pleaded in the application. Apart from the first applicant, none of the 89 other applicants have registered their protest about the VSS. Though there is mention about a letter sent to the Conciliation Officer, it is not brought on record. [Paras 72, 76 and 77] [336-B; 338-A-C]

3.6 The appellants have produced a wealth of documentary evidence before the Labour Court. The Exhibits included the applications which were signed by the applicants and two witnesses; the VSS Scheme itself; the document evidencing the authorisation of payments of the amounts under the VSS Scheme; the Charter of Demand before the Management for discussionExhibit ‘F’. The Minutes of the Discussion of the meeting which was held on 20.05.2000. [Para 78] [338-C-D]

3.7 The applicants have failed to plead and prove, and on the yardstick of it being a case of no evidence, the Award became infirm and was liable to be interfered with. The findings rendered by the Labour Court that it was not the choice of the applicants and was thrust upon the complainants amounting to refusal of employment, is completely insupportable both in law and on facts. The finding that there was no demand from the side of the complainants for the introduction of the VSS is completely irrelevant, as, as an employer, it was certainly open to devise such policy which was in the best interest of the Corporation. Validity of the Scheme did not depend upon the Scheme having its origin in a demand by the workmen. The finding that there was no proposal for the Scheme or recommendation for reducing the staff strength was wholly irrelevant. It is the factum of the Scheme being propounded, in fact and implemented elsewhere as well, which should have been considered by the Labour Court. [Para 81] [338-H; 339-A-C]

3.8 Therefore, from the facts of the case, the only finding possible is that the Union to which the applicants belonged, wanted the VSS amount to be enhanced. This aspect has not been considered at all by the Labour Court. It is true that the document was marked as Exhibit ‘G’ with objection. In the cross-examination of the witness, through whom Exhibit ‘G’ was marked, there is no suggestion that such a discussion did not take place or the discussion did not relate to the enhanced payment under the VSS. But it is true that OPW1 admits that in Exhibit ‘G’, the two Office Bearers have not signed though their names are appearing. However, there is no cross-examination about discussion taking place prior to implementation. Therefore, this would, at any rate, show that the applicants, who were members of the Union, were fully aware of the VSS. There is no case for them that they were misled or defrauded by their own Union Leaders. A perusal of the Award would show that there is no discussion about these documents at all. Thus, this is a case where documentary evidence adduced is by appellants is ignored by the Labour Court. Thus, no case was made out before the Labour Court for invoking Section 33A read with Section 33 of the Act. [Paras 83 and 85] [340-E-G; 341-A]

State of Orissa and others v. Balaram Sahu and others (2003) 1 SCC 250 : [2002] 3 Suppl. SCR 525 – relied on.

4. During the pendency of the Writ Petition filed by the appellants in the High Court, 28 applicants deposited the amount which they have received from the appellants so that application under Section 17B of the Act could be pursued. This amount must be directed to be returned with interest at the rate of 8 per cent per annum from the date of deposit till the date of payment to the concerned workmen who had made the deposit. [Paras 86 and 87] [341-G-H; 342-A]