WORKMEN OF ENGLISH ELECTRIC COMPANY OF INDIA LTD., MADRASversusPRESIDING OFFICER & ANR.

WORKMEN OF ENGLISH ELECTRIC COMPANY OF INDIA                                 A
                LTD., MADRAS
                      v.
          PRESIDING OFFICER & ANR.

                         JANUARY 11, 1990.                                   B
        [RANGANATH MISRA, P.B. SAWANT AND K.
                  RAMASWAMY, JJ.]      '-

     Industrial Disputes ACt, 1947: Section 10( 1)(d)-Non-employ-
ment of workmen-Justification of-Findings of facts-Quantum of
evidence or appreciation thereof-Whether High Court could interfere C
under writ jurisdiction.

       Constitution of India, 1950: Article 226-Findings of facts-
Quantum of evidence or appreciation thereof-Whether could be
interfered.
                                                                             D
       Under the Industrial Disputes Act, 1947, the State Government
referred to the Industrial Tribunal the question whether the non·
employment of certain workmen in the appellant-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              E
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 F
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 G
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.
                                                                         H

                                   13
    14                    SUPREME COURT REPORTS            [1990) I S.C.R.

          Allowing the appeals in part, this Court,
A
        HELD: 1. The stand taken by the Union that work had not been
  provided on tt l0.1980 was wrong hi view of ihe fad that Ii 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 claltn of con-
B firmation with stoppage of work leading to retrenchment. The Union
  obviously realised its mistake when the Company filed its counter-
  statehtent making a difidlle assertion that bulk of the workmen had
  worked tm 13th, 14th and 15th of October, 1980. The Tribunal did
  eiuimine the question ot confirmation on the baslS iii" days of work pui in
  by tilt \Wrkfueil. it found that 131 periions out or tlie 186 worked for
  240 days. The liuliiber oi' 186 was reduced to 181 on account of dupllca-
C tion or death. The remaining 50, according to the Tribunal, had not
  compiete'd 240 days of work and were, therefore, not entitled to
  confirniatfoli, [ !8C-D I

        2. While it is a fact that the workmen had made tall claims which
D they hiid failed to substantiate, it was for the Tribunal and the High
  Court to appreciate the material on record and decide as lo \Vh!Ch piii-t
  of the dairil was teliable. The finding of the Tribunal that 131 workmen
  bad put In litore than 240 diiys 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
E the relier oil the basis that Section 25F of the lndusfrlai Disputes AC!
  had not been complied with. [ISE-HJ

          3. The claltn 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,
F   however, not be granted except to the extent it has been covered 1Jy two
    interim orders of this Court dated 14.2.1986 and 5.5.1988. ~uch pay-
    ments 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
G extraordinary jurisdiction under Art. 226 of the Constitution. [18G]

       CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
     ~~~cl~.                                                                    ~

        From the Judgment and Cirder dated 19.12.1985 of the Madras
 H High Court in W.A. No. 1235/83 & W.A. No. 72of 1984.
                    WORKMEN v. PRESIDING OFFICER {MISRA, J.]                 15

            M.K. Ramamurthi, K.S. Jankiraman and Jitender Sharma for A
       the Appellant.
~           T.S. Gopalan, P.N. Ramalingam and A.T.M. Sampath (NP) for
       the Respondents.

             The Judgment of Court was delivered by                                B

             RANGANATH MISRA, J, These ar~ two appeals by special
,Y.-   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.                               c
             The State Government of Tamil Nadu by order dated 11.5.1981
       made a reference under s. lO(l)(d) of the Industrial Disputes Act,


"
       1947, (hereafter 'Act' for short) to the Industrial Tribunal of the
       following disputes:
                                                                                   D
                  "Whether the non-employment of the following workers is
                  justified; if not, to what relief are they entitled? To com·
                  pute 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 Union itself E
       had come into existence on 1st of October, 1980. It had written to the
       Company on 14.10.1980 that dispite several years of service rendered
       by casual employees 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 F
       respective statements. On 2S. !l.1981, on behalf of the workmen an
~      amendment was sought which the Tribunal allowed. The Company
       challenged the amendment by filing a writ petition 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 G
       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. 2SF
       of the Act had not been satisfied before termination which amounted
       to retrenchment.
                                                                             H
    16                   SUPREME COURT REPORTS            [1990] I S.C.R. /

         The Company assailed the award by filing a writ petition before
A
  the High Court. A learned Single Judge held that the relief of rein-
  statement with back wages should have been confined to 13 J 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 com-
  pleted 240 days of service. Two writ appeals were filed before the
B 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
c 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 Company's counnter-statement was filed on 1st of
  August, 1981, and till that date, the respective stands of the Union and
D 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.
E On the 25th of November, 1981, and amendment of the original claim
  statement was sought by saying:

                "There were certain om1ss1ons and clerical-cum-typo-
                graphical mistakes with regard to the narration of events
                and circumstances leading to the raising of dispute relating
F               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:

0               "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
H               earlier cases of non-employment also."
            WORKMEN v. PRESIDING OFFICER [MISRA, J.J                  17

     The Division Bench found that an entirely new case was thus
sought to be introduced changing the case of non-employment on and          A
from 13.10.1980, to non-employment in the months of July, August,
September and October, 1980, and a 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:                            B

           "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 them-
           selves in, a blatantly false case of non-employment and          C
           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           D
           claim statement. As a result of this amendment, an incon-
           sistency crept in the claim statement itself. It is rather
           unfortunate that the Tr.ibunal, 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    E
           insufficient and inadequate to prove that there was termi-
           nation 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   F
           instant case. In our view, the award of the Tribunal is
           clearly vitiated because the Tribunal has not even con-
           sidered the inconsistency in the stand taken by the union
           and the evidence has not been considered at all by·the
           Tribunal. We are, therefore, constrained in this case to
           take the view that it is not provecl that the company            G
           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
           mus be set aside."

     Thereafter the Division Bench examined the tenabiliry of the H
    18                    SUPREME COURT REPORTS             [1990] 1 S.C.R.

  stand of the Union in its appeal and came to hold that the plea of
A retrenchment had not been established. Thus, the appeal by the Com·
  pany was allowed and the appeal of the workmen was dismissed. That            :J..
  is how two appeals have been brought before this Court out of one and
  the same award.

B         We have heard counsel lior the parties. Written submissions 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
C   casual workmen out of the lll6 had really worked on the 13th and the
    two following days. The Unicin 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
D   13th, 14th and lSth 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 SO, according to the Tribunal, had not completed 240
E   days of work and were, therefore, not entitled to confirmation. We are
    of the view that in the facts 11nd circumstances appearing on the record
    it was not appropriate for th1e Divsion 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 material on the record and
F   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 particu·
    lars and clear evidence should have been placed before the Tribunal.
    Quantum of evidence or appreciation thereof for recording findings of
    fact would not come within the purview of High Court's extraordinary
Q   jurisdiction under Art. 226 of the Constitution. The finding of fact that
     131 workmen out of the lis·t 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
H requirement of s. 25F of the Act had not been complied with. As the
              WOR~EN v. PRESIDING OFFICER [MISRA, J.]                    19

Division Bench found, and we find no justification to take a different        A
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            B
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.
                                                                              c
       Parties are directed to bear their respective costs throughout.

G.N.
                                                        Appeals allowed.
                                                                              D