M.M Das, J.:— Opposite Parties 1 to 90 (workmen) represented by one Ramesh Chandra Satpathy President, Rengali Power Project Workers Union filed Industrial Dispute Misc. Case No. 1 of 2001 under Section 33-A of the Industrial Disputes Act, 1947 (for short, ‘the Act’) before the Labour Court, Bhubaneswar, against the Writ Petitioners representing the Management, praying for reinstatement of all the ninety workers in their respective jobs by way of regular service and for such other appropriate relief. It was the case of the workmen before the Labour Court that they were working as N.M.R workers since fifteen years as Welders, Fitters, Riggers, Helpers etc. in different capacities and their services were vested with the Orissa Hydro Power Corporation Ltd. (in short, ‘the OHPC Ltd. ‘) with effect from
2. 4.1996 when the said Corporation was created under Orissa Power Sector Reforms Act, 1995. The said corporation in its Rengali Hydro Electrical Project was a power generating station generating electricity and selling the same to the Grid Corporation of Orissa Ltd. On the date, when the services of the workmen were vested with the OHPC Ltd., an application was pending before the Hon'ble Supreme Court vide Civil Appeal No. 7343 of 1993 arising out of O.J.C No. 2420 of 1989 decided by this Court. In the said Writ Petition, this Court passed an order to regularize dll the N.M.R workers those, who have completed five years of service or otherwise to pay “equal pay for equal work” as their counterparts in the regular establishments are getting in the Rengali Hydro Power Project. On the date of filing of the said application by the workmen before the Labour Court, an industrial dispute was also pending before the Labour Commission, Orissa, Bhubaneswar for regularization of N.M.R workers of the OHPC Ltd. It was pending at the stage of conciliation before the Assistant Labour Commissioner-cum-Conciliation Officer Headquarters, Bhubaneswar for disposal. The said dispute related to payment of Hydro Allowance and Medical allowance to the N.M Rs of Rengali Hydro Electric Project being I.D Case No. 58 of 1999. The workmen, in the present case, were parties to the said dispute being the members of the Union, which raised the dispute. In the application under Section 33-A of the Act, the Opp. Parties workmen alleged that the Management knowing fully well that the dispute is pending before the Labour Court, with an intent to defraud from regularizing them in their services obtained the signatures of the workmen enmass in certain papers under the pretext of regularizing them in the OHPC in regular cadre as the project in which they were working was to be completed soon. It was further alleged that without understanding the implication of such application, on good faith, the workmen gave their signatures, but, later on, understood that those applications referred to the Voluntary Separation Scheme without any claim for future employment. The matter was intimated to the Labour Commissioner at the time of conciliation and the authorities before removing the workmen did not obtain leave of the Tribunal/Labour Court, which amounts to a change in their service condition, which is not voluntarily done by the workmen, but actuated with fraud, and, thus, in violation of the provisions of Section 33-A of the Act and is a nullity. A show cause was filed by the Writ Petitioners before the Presiding Officer, Labour Court, Bhubaneswar taking a stand that the application is not maintainable as Section 33-A of the Act is a special provision for adjudication of a complaint on the question as to whether the condition of service of the employee has been changed during the pendency of the proceeding and whether the employer contravened the provisions of Section 33 of the Act during the pendency of such proceeding before the appropriate Court/Tribunal/Fora. The Management pleaded that in the instant case, neither the conditions of service of the workmen have been changed nor any of the applicants have been terminated from their services on the ground of any misconduct during any pending dispute. Thus, it was stated that no action of the Management contravenes the provisions of Section 33 of the Act. The Management further pleaded that the workmen voluntarily opted for separation from service under the scheme which was notified and accordingly, they have been given voluntary retirement separation from service. The recognized Union of Rengali Power Project, i.e, Rengali Power Project Workers’ Union entered into a Minutes of discussion/settlement with the Management accepting implementation of the Voluntary Separation Scheme for the employees of Rengali Project and at no point of time, the Management has forced the employees to opt for the voluntary separation under the scheme.
4. In order to substantiate the respective cases of the parties, the Management examined two witnesses and produced documents marked as Exhibits “A” to “K”. The workmen, on the other hand, examined four witnesses and exhibited the documents marked as Exts. 1 to 4 before the Labour Court. The Labour Court framed issues basing on the pleadings of the parties and after recording the evidence and marking the documents proved before it, came to the following findings:—
“In view of the discussions made above, the action of the management-Opposite Parties in implementing the Voluntary Separation Scheme forcibly or by mis-representation is illegal and unjustified. The complainants are entitled to be reinstated in service and are deemed to be continuing in service from the date 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 per cent) 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 on month from the date of its Notification for publication.”
5. The Labour Court ultimately held on considering the materials produced before it that there was no demand from the side of the workmen nor there was any proposal from the side of the officials of the management for introduction of Voluntary Separation Scheme or Voluntary Retirement Scheme. The S.D.O and the Executive Engineer of OHPC Ltd. never recommended for reducing the staff strength and admittedly, the Voluntary Separation Scheme was not published widely for the information of the N.M Rs and, therefore, it cannot be expected that the N.M Rs sent Voluntary Separation Scheme applications knowing its contents and consequences. On reference to Ext. 3, the Labour Court held that it is clear that A.W 1 though su?? nitted application for voluntary Separation Scheme either under pressure or under a wrong notion, he withdrew the same on 1.6.2000 but his application was not returned back and he was given a Voluntary Retirement under the said scheme. On these conclusions, the Court below held that the Voluntary Separation Scheme was not to the choice of the workmen, but it was thrust on them and, therefore, amounts to refusal of employment in the guise of Voluntary Separation Scheme.
6. It also appears that the workmen-Opp. Parties approached this Court in O.J.C No. 2420 of 1989 for regularization of their services and for equal pay. As already stated, this Court directed for the regularization of those, who have completed five years of service and to pay them equal wages, which is paid to the regular workers. The order passed by this Court was challenged by the Petitioners management before the Hon'ble Apex Court and the Apex Court did not interfere with the orders passed by this Court.
7. Mr. Nanda, Learned Counsel for the Petitioners strenuously urged that the application filed before the Labour Court purportedly under Section 33 of the Act was prima facie not maintainable. He, therefore, submitted that the order impugned in this Writ application being the award passed in the said proceeding under Section 33- A of the Act is an order without jurisdiction. Relying upon the decisions in the cases of Punjab Natronal Bank Ltd. v. Their Workmen, 1959. Vol. LLJ. 666, Syndicate Bank Ltd. v. its workmen, 1966 Vol. LLJ. 440 (Index Note) and E.P Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 : AIR 1974 SC 555, he submitted that notifications having been issued with regard to introduction of Voluntary Separation Scheme which was approved by the Government in respect of NMR workers for all the projects and power stations in the State including the Rengali Power Station in the charter of demand raised by the Union on 15.4.2000 (Annexure- 2) and one of the demands of the workmen being enhancement of the amount of Voluntary Separation Scheme for N.M.R employees pursuant to which, the notification quoting the Voluntary Separation Scheme was issued on 27.4.2000 without agreeing to any enhancement of Voluntary Separation Scheme amounts, inviting application under the Voluntary Separation Scheme which was extended from time to time and the present Opp. Parties workmen having made applications under the said scheme, no illegality has been committed in accepting the said applications filed by the present Opp. Parties and allowing them to avail the benefits of the said scheme.
8. On analyzing the decisions cited by Mr. Nanda, it appears that the case of Punjab National Bank Ltd. (supra) deals with a case, where the employer made an application under Section 33 of the Act for requisite permission. Therefore, the facts of the said case being in a different context altogether, the law laid down therein cannot be applied to the facts of the present case. In the case of Syndicate Bank Ltd. (supra), the Supreme Court held that the finding of mala fide should be reached by Indus Trial Tribunals only if there is sufficient and proper evidence in support of such finding and such a finding should not be reached capriciously or on flimsy grounds. In the case of E.P Royappa (supra), the Supreme Court was examining in the context of the said case, as to whether, the action taken by the Respondents therein included any component of mala fides and whether hostility and malus animus against the Petitioner therein were the operational cause of the transfer of the Petitioner from the post of Chief Secretary. While examining this question, this Supreme Court held that the burden establishing the mala fides is very heavy on the person who alleges it and such allegations are often more easily made than proved and the very seriousness of such allegations demands proof of a high order of credibility.
9. Mr. Nanda vehemently argued that in the instant case, the principles laid down in the above decisions of the Supreme Court have been clearly given a go-by as the Labour Court believing the statement of A.W 4 arrived at a finding that the workmen were given to understand that their signatures have been obtained in the said papers making a misrepresentation that their services will be regularized which is erroneous as the workmen have failed to prove the allegation of mala fide on the part of the Management.
10. Mr. Somanath Mishra, Learned Counsel appearing for the workmen - Opp. Parties supporting the impugned award submitted that from the evidence adduced by the parties, it is clear that the Management-employer has taken the signatures of the workmen assuring that the said signatures have been taken to regularize their services. From the above material, it is clear that the workmen were misled on the false assurance given by the employer, which itself amounts to an act of mala fide and, therefore, the workmen have discharged the burden of proof of mala fide on the part of the Management - employer. He further submitted that in view of such material, the Management-employer having not taken prior approval of the Tribunal/Court, in the dispute already pending between the parties, has clearly violated the provisions of Section 33 of the Act. He, therefore, submitted that there is absolutely no error of jurisdiction or illegality on the face of the award calling for interference of this Court by issuance of a Writ of certiorari.
11. From the award, it is revealed that an industrial dispute was pending between the parties, where the following questions were referred to be answered:—
(i) “Whether the N.M.R Workers of Orissa Hydro Power Corporation Ltd. Rengali Unit are entitled for payment of Hydro Allowance at the revised rate? If what should be the details?”
(ii) “Whether the N.M.R employees of the Rengali Unit of O.H.P.C who are being paid Medical Allowance are entitled for payment of such allowance at the revised rate? If so, what should be the details?”
12. In the present case, he addressed himself to the question of maintainability of the application under Section 33-A of the Act. Considering the admitted position that a dispute was pending relating to payment of Hydro Allowance and Medical Allowance at the enhanced rate, the Voluntary Separation Scheme, if would have been properly notified, there would not have been any irregularity. The Labour Court, on analyzing the evidence before it, came to the conclusion on fact, that admittedly, the scheme was not published widely for the information of the N.M Rs and, therefore, it cannot be expected that the N.M Rs signed the Voluntary Separation Scheme applications knowing its contents and consequences. In the impugned award, the Labour Court had found that the Voluntary Separation Scheme was not published in any newspaper nor there was any proposal for introduction of the said scheme. In the ultimate, the Labour Court in the impugned award directed that the workmen will be entitled to get 70% back wages and the amount already paid by the Management to the workmen towards Voluntary Separation Scheme benefit shall be adjusted. I also find that the workmen previously approached this Court in a Writ application, as stated earlier, in which, this Court directed regularization of the workmen and on such regularization to pay them equal amount as was being paid to the employees of regular establishment. The said order though challenged before the Apex Court, which was ultimately confirmed. Pursuant to the said order, the Management-employer should have carried out the directions issued by this Court regularizing the services of the workmen-Opp. Parties.
13. Much was made by Mr. Nanda with regard to the direction issued by the Labour Court that the award shall be implemented by the Management within one month from the date of issuance of notification for publication, though the Act provides that an award comes into effect only on expiry of thirty days from its publication in the Official Gazette and not from the date of notification.
14. From the above analysis of the facts of the case, it is clear that the impugned award has been passed on appreciating the oral and documentary evidences produced before the Labour Court. It is, therefore, clear that the order of the Labour Court directing that the award should be implemented by the Management within one month from the date of its notification or publication, is not contrary to the provisions of Sections 17, 17-A and 19(3) of the Act.
15. This being a Writ of certiorari, it is now to be examined whether this Court, in exercise of its power under Article 226 of the Constitution, can interfere with the impugned award or not?
16. It is well settled that certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by the inferior Courts or Tribunals. Such a Writ can be issued only in exercise of supervisory jurisdiction, which different from Appellate jurisdiction. While exercising the special jurisdiction under Article 226 of the Constitution, the Writ Court is not entitled to act as an Appellate Court. This limitation would necessarily mean that findings of fact reached by the inferior Courts or the Tribunals, as a result of appreciation of the evidence, cannot be reopened or questioned, in a Writ proceeding. The error of law, which is apparent on the face of the record can be corrected by a Writ Court but not an error of fact, however, grave it may appear to be. It is also well settled that in regard to a finding of fact recorded by the Tribunal/inferior Court, a Writ of certiorari can be issued if it is shown that in recording the said finding the inferior Courts or the Tribunals 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. (See Syed yakoob v. K.S Radhakrishnan, AIR 1964 SC 477).
17. In the instant case, the Writ Petitioners do not allege that either any admissible evidence has been refused to be admitted or any inadmissible evidence has been admitted by the Labour Court. It has also not been alleged that the findings of fact arrived at by the Labour Court are based on no evidence. Rather, the contention raised by Mr. Nanda on behalf of the Writ Petitioners relates to appreciation of evidence already existing on record. Examining the said contention with the touch stone of the settled provision with regard to issuance of Writ of certiorari under Article 226 of the Constitution would inevitably lead to an irresistible conclusion that the Petitioners have attempted to pursue this Court to reassess the evidence on record and come to a different conclusion. Such an act can only be done by an Appellate Court and as already stated, a Writ Court cannot act as an Appellate authority sitting in appeal over the impugned award. It, therefore, boils down to the position that the Labour Court having found that the applications were signed by the workmen on mis-representation made to them. The finding of the Labour Court that the said action amounts to violation of the provisions of Section 33-A of the Act is neither illegal nor erroneous. This Court, therefore, finds that the impugned award suffers from no error of jurisdiction nor any error appears on the face of it as well as the conclusions arrived at by the Labour Court are legal and binding on the parties and cannot be interfered with under Article 226 of the Constitution by issuing a Writ of certiorari.
19. In the result, the Writ Petition, being devoid of any merit, is dismissed, but in the circumstances without cost.