Full Judgment Text
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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.
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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.
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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.
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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."
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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
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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
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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.
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