Judgment :- The first respondent is carrying on business in tannery with the factory licence to employ more 150 workers. Due to financial crisis, the factory was closed on and from 12.1.87. The settlement under 12(3) of the Industrial Disputes Act dated 10.2.87 was entered into between the employees and the Management before the Joint Commissioner of Labour. At the time when the factory was closed, there were 123 employees working. They were served with notice paying closure compensation, gratuity, Provident Fund and other legal dues. Clause 4 of the Settlement reads as under: "The parties agree that in the event of the management re-opening the factory, the management shall give reference to the 123 workmen retrenched herein as provided for under Section 25(H) of the Industrial Disputes Act." 2. Claiming that the first respondent again started the production on or before 2.3.89, 74 employees out of 123 employees raised Industrial Disputes. Though initially conciliation ended in failure and the Government refused to refer the matter, the dispute was adjudicated by the Labour Court and by award dated 25.9.92, the Labour Court directed reinstatement with backwages to all the 74 employees. 3.Questioning the award the first respondent, Management filed W.P.No.2588/93. In the said writ petition, the first respondent Management interalia contended that in terms of Rule 63 of the Factory Rules, the application under section 25H of the Act is not applicable to the employees after a period of two years. It was also contended that all 123 employees have received their closure compensation and they have no right to seek for re-employment, more particularly, after expiry of two years and finally it was contended that the factory was reopened on trial basis with the factory licence enabling the first respondent to engage 50 workers. 4. All these three contentions were repelled by this Court and the right of 73 employees except one employee who was no more were directed to be re-employed on preference basis. 4. All these three contentions were repelled by this Court and the right of 73 employees except one employee who was no more were directed to be re-employed on preference basis. However, in the absence of evidence as to the number of vacancies to enable the first respondent to reinstate these remaining 73 employees, this Court remitted the matter to the Labour Court for fresh disposal by giving liberty to both the employees and the management to let in evidence as to the actual number of workers employed by the first respondent after the factory was reopened on 2.3.89 and the actual vacancies to which the employees are entitled to get accommodated in the order of preference. 5. Before the Labour Court, the first respondent produced as many as 42 Exhibits marked as Ex.M1 to M.42. The first respondent also examined three witnesses whereas on behalf of the petitioner side four witnesses were examined and documents Ex.W1 and W6 were marked. On considering the oral and documentary evidence, the Labour Court by the impugned award came to the conclusion that as on 2.3.89, the first respondent had engaged only 33 employees and as per the direction of this Court 33 employees out of 73 employees are entitled to be appointed on preferential basis. In so far as the remaining employees, the Labour Court found that since the factory is closed and the actual number of vacancies were only 33, others are not entitled for reinstatement. This portion of the award in disentitling the remaining employees, is questioned in this writ petition on the ground that the Labour Court has exceeded its jurisdiction in deciding the entitlement of the employees for reinstatement when the said issue was already concluded by the order of this Court in W.P.No.2588/93 which was also confirmed by the Division Bench in W.A.No.1472/93. 6. In support of the challenge, learned counsel for the petitioner would draw my attention to the order of this court dated 13.10.93 and more particularly paragraph 8 of the order. The said order reads as under: "In fine, all the arguments advanced on behalf of the petitioner are rejected. It is categorically held agreeing with the first respondent that the petitioner is bound to re-employ respondents 2 to 75 in a phased manner on the basis of the availability of vacancies. The said order reads as under: "In fine, all the arguments advanced on behalf of the petitioner are rejected. It is categorically held agreeing with the first respondent that the petitioner is bound to re-employ respondents 2 to 75 in a phased manner on the basis of the availability of vacancies. For the purpose of finding out the number of vacancies which were existing from 2.3.1989 and for the purpose of finding out the seniority of the retrenched workmen namely, respondents 2 to 75 the matter is remitted back to the first respondent. It make it clear that the first respondent can only decide the last aspect of the case and for this purpose, it can take evidence from both the parties. The first respondent shall complete the process on or before 31.12.1993 giving priority to this case. The Registry is directed to send back the papers on or before 25.10.1993. The Writ Petition is ordered in the above terms. However, there will be no order as to costs." 7. Placing reliance on the above direction of this Court, learned counsel submitted that the Labour Court could consider the availability of vacancies only and ought not to have engaged in discussions as to the entitlement of the remaining employees for reinstatement. Such discussion and the consequential finding on this aspect are totally outside the direction of this Court and hence that portion of the award is liable to be set aside. 8. On the other hand, learned counsel appearing for the first respondent would submit that the order of this Court should be read in full. In fact, when the dispute was pending, I.A.No.272/90 was filed seeking for a direction to the first respondent to produce certain documents. Since the said Interlocutary Application was dismissed there was no evidence as to the number of employees engaged by the first respondent after the factory was re-opened and correspondingly, the number of vacancy to be filled up from among 73 petitioners in the writ petition. Hence, this Court had directed the Labour Court to consider the said aspect by giving liberty to both the employes and the first respondent management to let in evidence. Only in this context, this Court directed the Labour Court to decide as to the availability of vacancies only to accommodate such of those employees/writ petitioners in the first respondent factory. Hence, this Court had directed the Labour Court to consider the said aspect by giving liberty to both the employes and the first respondent management to let in evidence. Only in this context, this Court directed the Labour Court to decide as to the availability of vacancies only to accommodate such of those employees/writ petitioners in the first respondent factory. In fact the labour Court considering the documents produced, factually had come to the conclusion that the first respondent had engaged only 33 employees on the date of reopening and therefore, the Labour Court rightly held that there were 33 vacancies which ought to have been filed up from among 73 employees. Only in the said context, the Labour Court directed 33 employees to be reinstated and consequently did not find favour with the claim of re-instatement of other employees. The Labour Court had also taken into consideration of the fact that the factory was subsequently closed and there is no question of further employment. In view of the above, learned counsel submitted that there is no error warranting any interference. 9. In view of the above submissions, the short question arises for consideration is whether the Labour Court had exceeded in deciding the issue as to the availability of vacancies and the entitlement of 33 employees alone for reinstatement and in directing the disentitlement of the remaining employees on the ground that there were no vacancies and that the factory was closed. The relevant paragraph in directing the Labour Court to adjudicate the matter is extracted in the earlier portion of this order. A reading of paragraph 7 of the order shows that the direction was issued since I.A.No.272/90 seeking for a direction for production of certain documents to ascertain as to the number of employees working in the first respondent factory was dismissed as this Court was not in a position to actually direct reinstatement of all the respondents in the absence of details as to the number of vacancies. Hence, this Court remanded the matter with a direction to the Labour Court only to adjudicate on the question of availability of vacancy for reinstatement of 73 employees in a phased manner. The Labour Court is therefore necessarily go into the evidence let in by both the employees and the first respondent management. Hence, this Court remanded the matter with a direction to the Labour Court only to adjudicate on the question of availability of vacancy for reinstatement of 73 employees in a phased manner. The Labour Court is therefore necessarily go into the evidence let in by both the employees and the first respondent management. There is nothing wrong in the Labour Court to consider the evidence placed before it only for the purpose of ascertaining the availability of vacancies. The evidence was appreciated by the Labour Court and factually came to the conclusion that on 2.3.89 only 33 employees were working in the first respondent factory. To come to that conclusion, the Labour court relied upon the Muster Roll as well as Ex.M.22, the Chart as well as Ex.M.26 to show that the Inspector of Factories and Assistant Inspector of Factories who visited the factories at the instance of the respondent on various dates have also found that there were 23 workmen. Ex.M.23 is the attendance register in respect of those employees. 10. Per contra learned counsel for the petitioner would rely upon the deposition of W.W.4 to content that he was also an employee working from the year 1989 and there were 90 employees working along with him. Out of 90 persons 35 persons were employed on monthly wages. The Labour court had over looked the said evidence and therefore, the finding that there were only 33 vacancies is perverse. 11. Of course, the evidence of WW4 was not taken into consideration by the Labour Court. Even assuming the same is taken into consideration except the oral testimony of W.W.4, no other contrary document was filed on behalf of the petitioners controverting the documentary evidence produced by the first respondent more particularly Ex.22, 23 and 26. It is well settled law that this Court sitting in Article 226 of the Constitution of India does not sit as a Court of Appeal to re-appreciate the evidence once again and come to a different conclusion. Only in the event that the finding is so perverse, not supported by any evidence or the finding is without any materials, this Court could interfere in the Award. It is not a case of no evidence to sustain the plea of the first respondent that 33 employees were employeed by the first respondent warranting the reinstatement of 33 employees/petitioners in the order of preference. It is not a case of no evidence to sustain the plea of the first respondent that 33 employees were employeed by the first respondent warranting the reinstatement of 33 employees/petitioners in the order of preference. Such a finding as to the vacancy position cannot be interfered by this Court as the same is supported by materials. It is also well settled law that the finding of the Labour Court cannot be interfered if the same is based on some material. 12. On the above background the question now to be considered is as to whether the Labour Court has exceeded the direction of this court in rendering the finding as to the disentitlement of the remaining employees except 33 out of 73 employees. Paragraph 8 of the order in W.P.No.2588/93 is explicitly clear that the first respondent is bound to re-employee the respondents 2 to 75 namely 73 employees. In so far as the contention of the learned counsel for the petitioner that the finding of the Labour Court that only 33 employees was entitled to re-instatement and the remaining are not entitled is out side the directions of this Court, in this regard paragraph 19 of the impugned award is relevant and the same reads as under. "19. In the result, the petitioners are found entitled to reinstatement for period shown in Ex.M.25 list. Therefore, to conclude I hold that the following petitioners re-entitled to be reinstated and the period for which they are entitled to be reinstated is also as shown in Ex.M.25 list. Therefore Ex.M.25 list is ordered to be appended to this order as an annexure. Since after reopening of the Factory in March 1989 only 33 workers have been employed and since 33 senior workers among the petitioners were not given employment these 33 petitioners alone are found entitled to be reinstated for the period mentioned in Ex.M.25. The rest of the petitioners could not have been taken into employment since retrenchment compensation and other dues have been paid to them even in 1987 they are not entitled to any further reliefs. The factory remains closed once and for all from January 1994." 13. In the award it is only stated that since there were only 33 vacancies, 33 employees from and out of 73 employees are re-entitled to re-employment. The factory remains closed once and for all from January 1994." 13. In the award it is only stated that since there were only 33 vacancies, 33 employees from and out of 73 employees are re-entitled to re-employment. In so far as the other employees are concerned, the Labour Court has observed as follows: "The rest of the petitioners could not have been taken into employment since retrenchment compensation and other dues have been paid to them even in 1987 they are not entitled to any further reliefs." 14.Mr.Balasubramanian, learned counsel for the first respondent would contend that by the said direction, the Labour Court did not dismiss entitlement of the remaining employees for re-employment. The Labour Court has also found that since they have obtained retrenchment compensation they are not entitled to further relief, more particularly, the factory was closed. 15. In my considered view, the direction of the Labour Court inasmuch as declaring that the remaining employees are not entitled to any relief cannot be sustained in view of the specific finding of this Court in paragraph 8 of the order in the writ petition. However, the question still remains for consideration as to what relief the remaining employees are entitled. It is the specific case of the first respondent that the factory has been subsequently closed and it is not running. This fact also has been taken note of by the Labour Court. However, a reply affidavit has been filed by the petitioners to contend that the factory is running. There is a dispute as to this aspect between the stand taken by the petitioner and the first respondent. Law is well settled that this Court would decide the validity of the award only on the basis of the materials available before the Labour Court and not on any other material that may be produced before this court, as the parties should have the opportunity to contest such materials only before the labour Court. 16. Therefore, this Court cannot take note of the fact the reply affidavit filed by the petitioners that the factory is presently running. The petitioner has to establish their case for their entitlement to re-employment based upon the order of this Court made in W.P.No.2588/93. 16. Therefore, this Court cannot take note of the fact the reply affidavit filed by the petitioners that the factory is presently running. The petitioner has to establish their case for their entitlement to re-employment based upon the order of this Court made in W.P.No.2588/93. In that view of the matter I find that the award of the Labour Court is justified in so far as directing re-employment of 33 workers out of 73 workers as against the 33 vacancies. In so far as the remaining vacancies, the award as to disentitlement of remaining workers for the employment cannot be sustained. The Award of the Labour Court is set aside only to that extent. The relief of re-employment also cannot be ordered in so far as the remaining employees, as factually the factory has been closed. 17. Accordingly the writ petition is partly allowed. The remaining 40 workers are at liberty to work out their remedy for re-employment in terms of the directions of this Court in W.P.No.2588/93 before the appropriate forum by establishing the fact that the 2nd respondent factory is in fact running as on to-day. No costs.