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PETITIONER: WORKMEN OF ENGLISH ELECTRIC COMPANY OF INDIALTD., MADRAS

       Vs.

RESPONDENT: PRESIDING OFFICER & ANR.

DATE OF JUDGMENT11/01/1990

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH SAWANT, P.B. RAMASWAMY, K.

CITATION:  1990 SCR  (1)  13        1990 SCC  (2)  18  JT 1990 (1)    17        1990 SCALE  (1)4

ACT:     Industrial         Disputes         Act,           1947: Section10(1)(d)--Non-employment  of   workmen--Justification of--Findings  of facts--Quantum of evidence or  appreciation thereof--Whether  High  Court  could  interfere  under  writ jurisdiction.     Constitution  of India, 1950: Article 226---Findings  of facts-Quantum  of evidence or appreciation  thereof--Whether could be interfered.

HEADNOTE:      Under  the  Industrial  Disputes Act,  1947,  the  State Government referred to the Industrial Tribunal the  question whether  the nonemployment of certain workmen in the  appel- lant-Company  was justified, and if not what was the  relief to  which they were entitled. The employer and  the  workmen filed  their respective statements before the  Tribunal  and the workmen sought an amendment which the Tribunal  allowed. The  employer  challenged  the amendment by way  of  a  writ petition before the High Court. The High Court took the view that  the amendment could be assailed while challenging  the award itself.     The award was made and the employer assailed the same in a writ petition filed before the High Court. The High  Court confined the relief to 131 casual employees who have  worked for more than 240 days and set aside the award in respect of 50  others since they did not complete 240 days of  service. Aggrieved,  both the employer and the workmen filed  appeals before  the  Division Bench. The Division Bench  found  that until  the amendment was made, the workmen had  a  different claim from what was ultimately pressed before the  Tribunal, that there was great variation in the number of workmen  for whom relief was claimed, and came to the conclusion that  it was not proved that the employer terminated the services  of any of the casual workers. Thus, the appeal of the  employer was  allowed and that of the workmen  dismissed.  Aggrieved, the workmen have filed these appeals by Special Leave. 14 Allowing the appeals in part, this Court,     HELD: 1. The stand taken by the Union that work had  not been  provided on 13.10.1980 was wrong in view of  the  fact

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that  a substantial number of casual workmen out of the  186 had  really worked on the 13th and the two  following  days. The Union had mixed up its claim of confirmation with  stop- page  of work leading to retrenchment. The  Union  obviously realised  its  mistake when the Company filed  its  Counter- statement  making  a  difinite assertion that  bulk  of  the workmen had worked on 13th, 14th and 15th of October,  1980. The Tribunal did examine the question of confirmation on the basis  of days of work put in by the workmen, It found  that 131  persons out of the 186 worked for 240 days. The  number of  186  was  reduced to 181 on account  of  duplication  or death. The remaining 50, according to the Tribunal, had  not completed 240 days of work and were, therefore, not entitled to confirmation. [18C-D]     2.  While  it is a fact that the workmen had  made  tall claims which they had failed to substantiate, it was for the Tribunal  and the High Court to appreciate the  material  on record and decide as to which part of the claim was tenable. The  finding  of the Tribunal that 13 1 workmen had  put  in more  than 240 days of work was arrived at on the  basis  of some  evidence; it may be that better particulars and  clear evidence  should have been placed before the  Tribunal.  The Tribunal  rightly gave the relief on the basis that  Section 25F  of  the industrial Disputes Act had not  been  complied with. [18E-H]     3. The claim of confirmation of 131 workmen as found  by the  Tribunal  and upheld by the Single Judge  of  the  High Court  shall be restored. Relief of back wages in the  facts and  circumstances would, however, not be granted except  to the extent it has been covered by two interim orders of this Court  dated 14.2.1986 and 5.5.1988. Such payments  as  have been made shall not be recovered. [19B-C]     4.  Quantum  of  evidence of  appreciation  thereof  for recording findings of fact would not come within the purview of High Court’s extraordinary jurisdiction under Art. 226 of the Constitution. [18G]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 596-597 (NL) of 1986.     From  the  Judgment and Order dated  19.12.1985  of  the Madras High Court in W.A. No. 1235/83 & W.A. No. 72 of 1984. 15     M.K. Ramamurthi, K.S. Jankiraman and Jitender Sharma for the Appellant.     T.S.  Gopalan, P.N. Ramalingam and A.T.M.  Sampath  (NP) for the Respondents. The Judgment of Court was delivered by     RANGANATH  MISRA, J. These are two ap. peals by  special leave at the instance of the Union representing the  workmen and  challenge is to the reversing decision of the  Division Bench  of the High Court in two writ appeals--one  filed  by the  employer-Company and the other by the  workmen  through their union.     The  State  Government  of Tamil  Nadu  by  order  dated 11.5.1981  made a reference under s. 10(1)(d) of the  Indus- trial Disputes Act, 1947, (hereafter ’Act’ for short) to the Industrial Tribunal of the following disputes: "Whether  the  non-employment of the  following  workers  is justified;  if  not, to what relief are  they  entitled?  To compute the relief, if any awarded in terms of money, if  it could be so computed." A  list  of 186 workmen was appended to the  reference.  The

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Union  itself  had come into existence on  1st  of  October, 1980.  It  had  written to the Company  on  14.10.1980  that despite several years of service rendered by casual  employ- ees  they  were  not being confirmed and  were  deprived  of benefit and facilities applicable to permanent workmen.     Before  the Tribunal the employer and the workmen  filed their respective statements. On 25.11.1981, on behalf of the workmen an amendment was sought which the Tribunal  allowed. The Company challenged the amendment by filing a writ  peti- tion  before  the High Court but the High Court was  of  the view that the propriety of the amendment could be  assailed, if  necessary, while challenging the award itself passed  in due  course.  The Tribunal held that  181  casual  employees should  be  re-employed with full back wages  and  50  other casual employees should also be re-employed but without back wages.  This  direction  was given on the  ground  that  the requirement  of  s. 25F of the Act had  not  been  satisfied before termination which amounted to retrenchment. 16     The Company assailed the award by filing a writ petition before the High Court. A learned Single Judge held that  the relief  of  reinstatement with back wages should  have  been confined  to 131 casual employees as they alone  had  worked for 240 days and set aside the award in respect of 50 others on the ground that they had not completed 240 days of  serv- ice.  Two writ appeals were filed before the Division  Bench of  the  High  Court--Writ Appeal No. 1235 of  1983  by  the Company challenging the affirming part of the award and Writ Appeal No. 72 of 1984 by the Union of the workmen negativing relief to fifty workmen.     The Division Bench went into the matter at great length. It found that until the amendment had been made the  workmen had  a  different  claim from what  was  ultimately  pressed before  the Tribunal. The Division Bench further found  that there was great variation in the number of workmen for  whom relief was claimed. It took note of the fact that the Compa- ny’s counter-statement was filed on 1st of August, 1981, and till  that date, the respective stands of the Union and  the Company were clearly different. The case of the Union  until then  was that there was non-employment of employees on  and from 13.10.1980 inasmuch as work to the casual employees was refused  on  that  date;  the Company’s  case  was  that  on 13.10.1980, 130 casual employees out of the list attached to the reference had actually worked and most of them had  also worked  on  14th and 15th of October, 1980. On the  25th  of November, 198 1, and amendment of the original claim  state- ment was sought by saying: "There were certain omissions and clerical-cum-typographical mistakes with regard to the narration of events and  circum- stances  leading to the raising of dispute relating  to  the non-employment  of 186 workmen mentioned in the Annexure  of the terms of reference and covered by this dispute." The amended statement proceeded to state: "On 15th October, 1980, the management told the workers  who had  worked on that day that their services were  terminated and would not be permitted to work from 16th October,  1980. A  number of these workers were prevented entry at the  gate on  16.10.1980. The Union had decided to raise a dispute  in respect  of all these cases along with the earlier cases  of non-employment also." 17     The  Division Bench found that an entirely new case  was thus  sought to be introduced changing the case  of  non-em- ployment  on and from 13.10.1980, to non-employment  in  the months  of July, August, September and October, 1980, and  a

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specific  case  of non-employment on  and  from  16.10.1980. After  discussing at great length the oral  and  documentary evidence  and  the submissions advanced in the  appeals  the Division Bench summarised the position thus: "This  whole litigation gives us an impression  that  though there  may be a legitimate grievance of non-confirmation  of casual workers who have put in long terms of employment, the union  seems to be wholly responsible for the  situation  in which  the casual workers in dispute have  found  themselves in, a blatantly false case of non-employment and termination of 141 persons was put up. It was only at later stages  that the  union  found that such a case  cannot  be  successfully proved  and indeed was false to the knowledge of  the  union and  a case of termination on 16.10. 1980 was sought  to  be introduced  by amending only a part of the claim  statement. As a result of this amendment, an inconsistency crept in the claim  statement itself. It is rather unfortunate  that  the Tribunal,  by a very superficial approach,  merely  accepted the  evidence  that  131 persons were  terminated  when  the evidence,  as indicated above, not only runs counter to  the initial statement, but is wholly insufficient and inadequate to  prove  that  there was termination on the  part  of  the company.  Merely  telling a casual worker that there  is  no work is consistent with the status of casual workers and the compelling  circumstances of the removal of the cards  or  a positive statement that no work would be given at all to the casual workers, is lacking in the instant case. In our view, the  award of the Tribunal is clearly vitiated  because  the Tribunal  has not even considered the inconsistency  in  the stand  taken  by  the union and the evidence  has  not  been considered  at all by the Tribunal. We are, therefore,  con- strained in this case to take the view that it is not proved that  the  company terminated the employment of any  of  the employees  who were casual workers, and the finding  to  the contra recorded by the Tribunal and confirmed by the learned Single Judge must be set aside." Thereafter the Division Bench examined the tenability of the 18 stand  of the Union in its appeal and came to hold that  the plea  of  retrenchment had not been established.  Thus,  the appeal  by  the Company was allowed and the  appeal  of  the workmen  was  dismissed. That is how two appeals  have  been brought before this Court out of one and the same award.     We  have heard counsel for the parties. Written  submis- sions  have also been filed in support of  their  respective stands.     We are inclined to take the view that the Division Bench has  adopted  too  strict an approach in  dealing  with  the matter.  It is true that the stand taken by the  Union  that work  had not been provided on 13.10.1980 was wrong in  view of the fact that a substantial number of casual workmen  out of the 186 had really worked on the 13th and the two follow- ing  days. The Union had mixed up its claim of  confirmation with  stoppage  of work leading to retrenchment.  The  Union obviously  realised its mistake when the Company  filed  its counter-statement  making a definite assertion that bulk  of the  workmen had worked on 13th, 14th and 15th  of  October, 1980. The Tribunal did examine the question of  confirmation on the basis of days of work put in by the workmen. It  came to find that 131 persons out of the list of 186 appended  to the reference had as a fact worked for 240 days. The  number of  186  was  reduced to 181 on account  of  duplication  or death. The remaining 50, according to the Tribunal, had  not completed 240 days of work and were, therefore, not entitled to  confirmation. We are of the view that in the  facts  and

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circumstances appearing on the record it was not appropriate for  the Division Bench to dismiss the claim of the  workmen altogether.  While  it is a fact that the workmen  had  made tall  claims which they had failed to substantiate,  it  was for the Tribunal and the High Court to appreciate the  mate- rial on the record and decide as to which part of the  claim was  tenable. The finding of the Tribunal that  131  workmen had put in more than 240 days of work was arrived at on  the basis  of some evidence; it may be that  better  particulars and clear evidence should have been placed before the Tribu- nal. Quantum of evidence or appreciation thereof for record- ing  findings of fact would not come within the  purview  of High  Court’s extraordinary jurisdiction under Art.  226  of the  Constitution. The finding of fact that  workmen out  of the list appended to the reference had completed 240 days or work  should,  therefore,  not have been  disturbed  by  the Division Bench of the High Court.     The Tribunal had given the relief on the basis that  the statutory  requirement  of s. 25F of the Act  had  not  been complied with. As the 19 Division Bench found, and we find no justification to take a different  view, the case of termination of  employment  had indeed  not been made out. On that footing a  direction  for reinstatement  with full back wages ought not to  have  been given.  We  are,  therefore, inclined to  mould  the  relief available to the workmen.     The claim of the confirmation of 131 workmen as found by the  Tribunal and upheld by the learned Single Judge of  the High  Court shall be restored. Relief of back wages  in  the facts  and  circumstances  would, however,  not  be  granted except  to  the extent it has been covered  by  two  interim orders  of this Court dated 14.12.1986 and 5.5.  1988.  Such payments as have been made shall not be recovered. Parties are directed to bear their respective costs through- out. Appeals allowed. 20