vil Appeals Nos
596 597 NL of 1986
From the Judgment and Order dated 19121985 of the Madras High Court in WA No 123583  WA No 72 of 1984
15 MK Ramamurthi KS Jankiraman and Jitender Sharma for the Appellant
TS Gopalan PN Ramalingam and ATM 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 1151981 made a reference under section 101d 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 Union itself had come into existence on 1st of October 1980
It had written to the Company on 14101980 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 25111981 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 section 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 13101980 inasmuch as work to the casual employees was refused on that date the Company s case was that on 13101980 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 16101980
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 13101980 to non employment in the months of July August September and October 1980 and a specific case of non employment on and from 16101980
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 1610
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 13101980 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 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 article 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 section 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 14121986 and 55 1988
Such payments as have been made shall not be recovered
Parties are directed to bear their respective costs through out
Appeals allowed


Summary:
The Defence of India Act 1962 was passed by Parliament in the wake of the Chinese aggression to ensure public safety and interest in the Defence of India and Civil De fence and other connected matters
It had been passed when the was already in force
Under the provisions of both these Acts immovable property could be requisitioned
Under both Acts compensation on such requisition was determinable and payable and any person interested being aggrieved by the amount of compensation so determined could have an Arbitrator appointed to determine the same
The award of the Arbitrator on such determination under Section 8 was appeal able under Section 11 of the Requisitioning Act before the High Court within whose jurisdiction the requisitioned property was situated
The award of the Arbitrator made under Section 30 in pursuance of the requisition made under Section 29 of the Defence Act was apparently final though specifically not provided since no right of appeal against the award of the Arbitrator had been conferred thereunder on any authority
The Defence Act ceased being applicable as it perished on January 10 1968
Simultaneously Section 25 in the Requi sitioning Act was substituted
Some lands belonging to the first respondent in either of the two appeals were requisitioned by the Union of India under Section 29 of the Defence of India Act 1962 by issu ing a notification to that effect on 5 April 8 1963 and possession was taken by the military authorities on May 28 1963
The requisitioned property was not released before January 10 1968 in terms of Section 251 of the Requisitioning Act
The Deputy Commissioner the competent authority fixed Rs280 per acre per annum as crop compensation
Respondent No 1 not being satisfied sought a reference from the compe tent authority to an arbitrator
The arbitrator went into the matter and made an award on June 30 1971
The Special Military Estates Officer being aggrieved with the award filed two appeals against the orders of the Arbitrator in the High Court taking shelter under Section 11 of the 
Since the properties that had been requisitioned had not been released before January 10 1968 it had to be treated seemingly to have been requisitioned by the competent au thority under the provisions of the Requisitioning Act for the purpose for which such property was held immediately before the said date and all the provisions of the said Act were to apply
Objections to the maintainability of the appeals were taken relying on proviso a to Section 251 on the ground that the word determination  in the context meant determina tion only by the competent authority under the Defence Act and since such determination held the field and was in force immediately before January 10 1968 no challenge thereto could be made by appealing against the same on the premises that a provision amongst all the provisions of the Requisi tioning Act provided an appellate forum challenging the same
The High Court upheld the objection and dismissed the ap peals
The Special Military Estates Officer appealed to this Court by special leave
Partially allowing the appeals the Court HELD 1
The right of appeal is a substantive right conferred on a party by the statute
The conferring of such right is not circumscribed by the right being available at the time of the institution of the cause in the court of the first instance
In a given situation it may already be available at the institution of the cause in the court of first instance or 6 may even be subsequently conferred
In either situation without any distinction such right is conferred by statute 10E F 2
The Legislature by enacting Section 25 of the Requi sitioning Act and on the perishing of the Defence Act has more than impliedly made available a right of appeal regard ing the rate of compensation for a property remaining under requisition for the post 10th January 1968 period recur ring as the rate of compensation would be
11G H 3
From the scheme of things and from the reading of Section 25 of the Requisitioning Act as a whole it is discernible that for the period of requisition before Janu ary 10 1968 the determination for payment of compensation under the Defence Act would remain untouched and unaltered for appeal had never been provided under the Act
The reason is not far to seek because the order of the competent au thority under the Defence Act was for the purpose of Defence of India Act
That purpose having gone with effect from January 10 1968 the same determination for payment of compensation being applicable to the cost date period was seemingly a requisition by the competent authority under the Requisitioning Act and since all the provisions of the said Act applied to such a requisition the payment of compensa tion as from January 10 1968 became appealable as an appeal is provided under this Act
10H 11A B 4
The word determination  so far as it related to the period of requisition prior to January 10 1968 was a determination final in character whether it was right or wrong as having been made under the Defence Act
But for the period thereafter the word determination  in the context would mean final determination  ie the determination of the competent authority if unchallenged and becoming final and if appealed against final determination by the appel late forum
11C D 5
A harmonious construction of the proviso to Section 251 with the whole of parent section indicates that the rate of compensation as determined by the competent authori ty under the Defence Act was valid uptil the period January 10 1968 but from that day onward the same rate of compen sation per annum would keep applying till upset or altered in appeal because deemingly from that date it is a requisi tion under the other Act and of a different worth and cor rectable in appeal
11D E 6
The latter portion of proviso a cannot therefore be allowed to eat away the applicability of all the provisions of the Requisition Act 7 inclusive that of appeal under Section 11 of the Act
11 D 7
In the instant case the arbitrator passed both the awards on June 30 1971 pertaining to the period commencing from May 28 1963 the date on which the possession of the land requisitioned was taken
Plainly the award was made covering a period not any prior to January 10 1968 but to a period thereafter
Having regard to section 25 the objection as raised before the High Court was valid for the period before January 10 1968 but not beyond the period commenc ing thereafter
The case has therefore to be remitted back to the High Court for disposal on merits
11F 12A