vil 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.
15 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 section 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 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 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 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.
" 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 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: "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 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 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 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 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.


Summary:
Under the , 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.
14 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 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 article 226 of the Constitution.