General Manager, Electrical Rengali ... vs Sri Giridhari Sahu

4. In short, the case of the applicants (who were NMR workers in the Rengali Unit) before the Labour Court was that a reference had been made to the Labour Court dated 02.07.1999 for adjudicating disputes between the appellants-Management and its workmen. Issues were 2 essentially whether NMR workers were entitled to payment of Hydro Allowance at revised rates. The further issue was, whether NMR workers of the Rengali Unit of the Orissa Hydro Power Corporation, who were being paid medical allowance, were entitled for such allowance at revised rates.

5. The further case of the applicants, who were NMR workers in the Application under Section 33A of the Act, was that they had signed certain papers on the basis that it was necessary for their being regularized but as it turned out, it was used as if they were Applications for claiming the benefit of a Voluntary Separation Scheme (hereinafter referred to as ‘VSS’ for short). They were prevented from discharging their duties. They came to know about the deception practiced. This led to the application under Section 33A of the Act.

6. The Labour Court found that the VSS was thrust upon the applicants and there was no publicity and allowed the application and directed reinstatement with 70 per cent back-wages which was directed to be adjusted towards payments made to the applicants.

9. The appellants would submit that on 16.11.1999), the Government of Orissa, Department of Energy, approved the proposal of the appellant-Corporation to float the VSS after concurrence from the Finance Department in respect of NMRs/Contingent Khalasis. On 15.04.2000, the President of the Employee Union wrote to the Chairman to fix a date to discuss about certain issues. One of the issues was about enhancement of the VRS for NMR employees. On 27.04.2000, the appellant-Corporation informed the Senior General Manager that the VSS shall be enforced from 01.05.2000 to 31.05.2000 in Rengali Unit. A Notification, along with the Scheme, was to be circulated amongst the workers. It is the appellants case that 260 NMRs/Contingent Khalasis requested for separation out of 357. The Corporation accepted the application of 254 NMRs/Contingent Khalasis. On 25.05.2000, a discussion took place between the Management and the Union. The decisions were taken regarding regularisation of maximum number of 43 workmen 5 and also about the number of workmen to be considered under the VSS. The first applicant applied on 31.05.2000 under the Scheme. The application of the applicant was accepted on 08.06.2000. It is appellants case that applicant’s letter dated 01.06.2000 was never received by the appellants. On 13.06.2000, in fact, first applicant sought payment of gratuity under the Scheme. On 17.06.2000, the Corporation notified extension of the VSS for six days from 14.06.2000 to 24.06.2000. During that phase, 23 NMRs/Contingent Khalasis sought VSS benefits and the applications of 21 were accepted.

10. On 18.12.2000, an additional affidavit was filed by the appellant in this Court in Civil Appeal No. 7343 of 1993, bringing out the decision to introduce the VSS and that as on 01.05.2000, inter alia, 260 persons had applied for the Scheme out of which applications of 255 were accepted and they had taken the benefits under the Scheme. On 10.01.2001, there was a round of discussion and it was decided that there would be no more regularisation of NMRs at the Rengali Unit and VSS will be applied once again ending with 28.02.2001. 6 On 28.01.2001, the VSS was made available for one month from 30.01.2001 to 01.03.2001. Under this phase also 3 NMRs/Contingent Khalasis sought the benefit of the VSS. The workmen, who applied for VSS, were paid Rs.1,25,000/- towards ex gratia, Rs.5,500/- towards lumpsum differential on account of hydro and medical allowances and other amounts towards terminal benefits life gratuity, un-availed wages, etc.. A total sum of Rs.4,03,41,675/- was disbursed under the VSS. It was thereafter that on 29.05.2001, the application was filed by the 90 workers under Section 33A of the Act.

14. The Scheme was applicable to employees who had joined before the date of ban imposed on recruitment. This submission, appellants made, on the basis of documents which were brought on record after the arguments had commenced. The date of ban was 12.04.1993. It was further pointed out with reference to Exhibit ‘H’ which is produced before the Labour Court that applications contemplated witnesses. The witnesses were to be regular or work-charged employees in RHEP. Their names were to be disclosed. Clause (08) of Exhibit ‘H’ dated 24.04.2000, read as follows and was relied upon:

32. We have noticed that there was a proceeding before the Labour Court on the reference regarding the availability of certain benefits to the NMR workers. It is during the pendency of the same that the applicants alleged denial of employment. They alleged that in essence, they were duped into submitting applications as if they were intended to secure the benefit of the VSS whereas they put their signatures on the blank papers not comprehending such use.

55 FINDINGS OF THE LABOUR COURT

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 percent) 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 one month from the date of its Notification for publication.”

THE JUDGMENT IN CIVIL APPEAL NOS.7342-7343 OF 1993

73. Coming to the oral evidence, AW1, as noticed by us, states that he and other applicants were given to understand that their services will be regularised and signatures were taken on the VSS form. He further says that his signatures and that of the other applicants were taken by appellants forcibly giving an impression that their services will be regularised. As has been noticed by us, there is no case 69 of force which is used in paragraph-9 of the application, which constitutes the sole pleading.

75. AW 3 would state that with the instigation of the higher authorities, their signatures in the VSS were taken forcibly. In the similar way, the signatures of all the applicants were taken. No doubt, he speaks about the notice not being published nor it being circulated amongst the workers. It was not published in any local newspaper. In cross-examination, he would state that it is not a fact that he and other applicants were not refused employment forcibly nor the condition of service changed. On conspectus of his evidence, his deposit9ion is only to the effect that the application of AW3 and other applicants were secured forcibly. This is completely incompatible with the case of fraud which is pleaded and there is no pleading for force being used as we have noticed.

76. Coming to the last witness AW4, he would state that their signature was taken on an application and three to four blank papers. They were given to understand that their services would be regularised. But in cross-examination, he would state that the Executive Engineer and HR have 71 compelled him and others to sign. The complete prevarication is palpable and does not require any elucidation. This would qualify as a case where the pleading does not match up to the requirements of the case. The state of the evidence, which is adduced, makes matters even worse.

79. Item nos. 3 and 4 would show that it was decided that 43 NMR employees will be regularised on the basis of skill and qualification, seniority in terms of regularisation of NMR workers.

86. There is only one aspect which remains. During the pendency of the Writ Petition filed by the appellants in the High Court, 28 applicants deposited the amount which they have received from the appellants so that application under Section 17B of the Act could be pursued. This amount must be directed to be returned to the concerned workmen who had made the deposit and we also feel that the amount should be returned with interest.

87. Accordingly, the appeal is allowed and the judgment of the High Court is set aside. The Award passed by the Labour Court is set aside and the application filed by the applicants is dismissed. However, the appellants will return the entire amount deposited with them by the 28 applicants with interest at the rate of 8 per cent per annum from the date of deposit till the date of payment. The amount shall be returned back with interest as above to the 81 applicants concerned within a period of two months form the date of receipt of copy of this judgment.

88. There shall be no order as to costs.