JUDGMENT M. M. DAS, J. Both the aforementioned writ petitions arise out of one industrial dispute. W.P.(C) No. 457 of 2010 has been filed by the Management and W.P.(C) No. 3613 of 2010 has been filed by the Union representing the workmen, for which both the cases were heard together and disposed of by this common judgment. 2. 89 workmen working under the Management of Executive Engineer, Jajpur Irrigation Division, Jajpur as NMR workers in between 1985 and 1996 having been intimated by the management that their services are no more required with effect from 21.11.2003 afternoon raised an industrial dispute being represented by NMR Employees Union, Jajpur (for short 'Union'). Conciliation having failed and failure reports submitted to the appropriate authority, a reference under Sections 10 and 12 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'The I.D. Act') was made to the Industrial Tribunal, Bhubaneswar, to the following effect: “Whether the action of the Executive Engineer, Jajpur Irrigation Division, Jajpur by terminating the services of Sri Malay Kumar Senapati and 88 N.M.R. employees (as per list enclosed to the order of reference) with effect from 21.11.2003 of his Division is legal and/or justified? If not, what relief they are entitled to?" 3. Respective parties filed their statement of the case and written statement and led evidence in support of their case. The Tribunal by the impugned award dated 8.7.2009 passed in Industrial Dispute Case No. 8 of 2004 on appreciating the materials before it, holding that the retrenchment of the second party-members (workmen) is not as per the requirement of law, directed the management to absorb/reinstate the second party-members' under its Division in a phased manner according to their seniority, which' shall be prepared again basing on all documents with scope to the Union to have their say in the matter, by placing proper documents. The Tribunal clarified that the exercise of absorbing the second party-members in the management concerned be completed within a period of three months from the date of the award. Being aggrieved by the above award, the management has preferred W.P.(C) No. 457 of 2010. The workmen being aggrieved by non-grant of back wages, have preferred W.P.(C) No. 3613 of 2010 challenging such omission in the award. 4. Being aggrieved by the above award, the management has preferred W.P.(C) No. 457 of 2010. The workmen being aggrieved by non-grant of back wages, have preferred W.P.(C) No. 3613 of 2010 challenging such omission in the award. 4. The case of the workmen before the Tribunal was that all the 89 workmen working under the management of Jajpur Irrigation Division, Jajpur (hereinafter referred to as 'the Management') were being deployed in different sections of the said Division. All of them were engaged as N.M.R. workers in between 1985 and 1996 and during course of their employment, they performed various duties, such as, digging of earth for canal, maintenance, office clerical works, driving of the vehicles, operating pumps and motors, carpentry, watch and ward duty etc." most sincerely and to the utmost satisfaction of their employer. During course of employment, there was never any charge-sheet drawn up against anyone of them nor they have faced any proceeding for any misconduct. All of a sudden, while they were performing their duties, the management without any reason and rhyme informed the workmen that their services are no more required with effect from 21.11.2003 afternoon. The further case of the workmen was that even though they were present and performing their respective duties on 17.11.2003, no termination letter indicating the reasons there for was served on any one of them and on 21.11.2003, they were refused employment. They claimed that they have worked for more than 240 days in one calendar year under management and were entitled to the protection of the provisions of Section 25-F of the I.D. Act, but the management contrary to the said provisions took the action against them in an arbitrary and whimsical manner. They also alleged that the management has contravened the provisions of Sections 25-G and 25-H of the I.D. Act inasmuch as without a valid gradation list/seniority list of the workers of the Division, the termination of the employment of the workmen was effected and consequently after effecting such termination, the management allowed some junior employees to continue in employment. They also alleged that the management has contravened the provisions of Sections 25-G and 25-H of the I.D. Act inasmuch as without a valid gradation list/seniority list of the workers of the Division, the termination of the employment of the workmen was effected and consequently after effecting such termination, the management allowed some junior employees to continue in employment. The workmen further alleged that prior to the termination of employment of the workmen, there was a constant demand on behalf of the workers for non-payment of their dues for last seven months and for payment of wages at revised rates and in that manner, some of the workmen approached the State Administrative Tribunal for regularization of their services for which the management being vindictive towards them and to avoid such liabilities, terminated their services. It was the further case that when the Division Bench was running with less number of staff as pointed out by the Executive Engineer in his letter No. 3417 dated 20.5.2002, the retrenchment of the workmen without considering their deployment in required places is unjustified, uncalled for and can be construed as a colourable exercise of power. When the Government of Orissa in Water Resources Department vide its letter dated 30.10.2003 has allowed continuance of NMR and DLR personnel of different categories engaged after 12.4.1993 in some other Divisions of the State basing on the requirements, the management instead of taking similar decision in respect of its Division by deploying the workmen to the places where work was required, malafiedly retrenched them without due application of mind in an arbitrary manner. The workman pleaded that after being terminated, they are not employed gainfully anywhere and are still unemployed, living in penury having no scope to support their families. The workmen, therefore, prayed for their reinstatement in service with full back wages and other consequential benefits. 5. The management contested the claim of the workmen and filed their written statement before the Tribunal pleading, inter alia, that for the self-same cause, the workers having approached the State Administrative Tribunal in O.A. No. 1567 of 2003, the Industrial Tribunal has no jurisdiction to adjudicate the dispute. It was specifically pleaded that keeping in view the decision of the Government, 89 workmen who are N.M.R.s/D.L.Rs. It was specifically pleaded that keeping in view the decision of the Government, 89 workmen who are N.M.R.s/D.L.Rs. have been retrenched with effect from 21.11.2003, those who were engaged prior to 12.4.1993 i.e. the date of promulgation of ban order by the Government and such retrenchment was effected after receiving clarification from the District Labour Officer and on complying with the provisions embodied in Section 25-F of the I.D. Act. It was further pleaded that before effecting retrenchment, the seniority list after due verification was issued to the Union Secretary on demand vide letter dated 10.7.2003 and as such, the allegations made on that score are baseless. According to the management, all the workers were served with the retrenchment order dated 17.11.2003 through the Assistant Engineer under whom they were working. All of them having been paid their retrenchment benefits which includes all back wages, retrenchment compensation pay in lieu of one month notice and gratuity as defined under Section 25-F of the I.D. Act they are not entitled to any relief in the dispute case. The management specifically denied that the juniors to the workmen are continuing in employment after effecting retrenchment of the present disputants. In that connection, it was averred that some workmen in essential posts, i.e. Pump Driver, Jeep Driver, Electrician, Mechanics etc., possessing technical experience, have been allowed to continue under other managements as per the provisions of the Act, their services being essential for the interest of the business. In the above premises, the management prayed that the reference should be answered in the negative against the workmen. 6. Considering the respective cases of the parties as made out before the Tribunal, the Tribunal upon hearing the parties who adduced both oral and documentary evidence, came to the conclusion in the impugned award, as already mentioned. During course of hearing of these writ petitions, an affidavit was filed on behalf of the NMR employees Union representing the workmen in W.P.(C) No. 457 of 2010, inter alia, stating that in a meeting held on 1.11.2011 by the Principal Secretary to Government of Odisha, Department of Water Resources for finalization of re-engagement and posting of the retrenched work-charged employees, it has been decided to prepare a Data Base of NMR/ DLR/Work-charged employees of all the Irrigation Projects in the State. It has been further decided that the Data Base Panel should contain a list of fully submerged, partly submerged and other retrenched NMR/DLR/Work charged employees in respect of each category of posts even if they are involved in court cases. The said decision was communicated by the Addl. Secretary to Government in its Department of Water Resources to the Engineer-in Chief, Department of Water Resources, Orissa, Bhubaneswar and a general letter was also issued on 26.11.2011 by the Director, Personnel requesting all Chief Engineers for submitting information in respect of retrenched Work-Charged/NMR/DLR in a consolidated manner pertaining to the respective project/circle for preparation of their inter se seniority as desired by the Government in DOWR vide its letter dated 8.11.2011. The aforesaid two letters are quoted hereunder: "Government of Odisha, J Department of Water Resources No. FE-IV-Misc. 105/2011 26902/WR, Bhubaneswar, dated the 8.11.11. From Shri P. Pradhan, Addl. Secretary to Government. To The Engineer-in-Chief, Water Resources, Odisha, Bhubaneswar. Sub: Re-engagement of the retrenched Work-Charged employees of R.I.P., Samal and R.D.P., Rengali belonging to partly submerged category. Sir, I am directed to say that in the meeting held by Principal Secretary to Government, Deptt. of Water Resources on 01.11.2011 for finalization of re-engagement and posting of the retrenched Work-charged employees belonging to partly submerged category, it has been decided to prepare a data base of retrenched NMR/DLR/Work-Charged employees of all irrigation projects in the State. The data base panel should contain list of fully-submerged, partly submerged and other retrenched NMR/DLR/Work-Charged employees in respect of each category of post even if they are involved in Court cases and continuing as NMR and DLR Care should be taken to maintain inter-se seniority and wide publicity should be made before finalization of the list of above mentioned retrenched, employees and ensure that a single such case should not be left out to prevent any kind of litigation in future. You are, therefore, requested to prepare the data base scrupulously as per the above stipulations, and furnish the same to this Deptt. at an early date for further necessary action. Yours faithfully, Sd/- Additional Secretary to Government Office of the Engineer-in-Chief, Water Resources, Odisha, Seeha Sadan, Keshari Nagar, Bhubaneswar. Letter No. CLS-W/C-Rev-2/09-14972 (WE) Dated 26.11.11 From Er. Biswajit Mohanty, Director Personnel To All the Chief Engineer & Basin Manager/ Chief Engineer/Chief Construction Engineer/ Superintending Engineer and Director, Research/ Hydrometry/SS & DS. at an early date for further necessary action. Yours faithfully, Sd/- Additional Secretary to Government Office of the Engineer-in-Chief, Water Resources, Odisha, Seeha Sadan, Keshari Nagar, Bhubaneswar. Letter No. CLS-W/C-Rev-2/09-14972 (WE) Dated 26.11.11 From Er. Biswajit Mohanty, Director Personnel To All the Chief Engineer & Basin Manager/ Chief Engineer/Chief Construction Engineer/ Superintending Engineer and Director, Research/ Hydrometry/SS & DS. SUB : Re-engagement of retrenched Work-Charged/NMR/DLR - Preparation of panel - reg. Sir, On the above subject, I am directed to request that the information in respect of the retrenched Work-Charged/NMR/DLR may please be furnished in a consolidated manner pertaining to the respective project/circle with dated signature in each page of the statement (both Hard Copy & Soft copy) in the proforma enclosed, so as to maintain a data base panel in this office for preparation of their inter-se seniority as desired by Govt. in DOWR vide their letter No. 26902 dated 08.11.2011. It may please be ensured that the information furnished in the desired proforma contains the names of all the Work-Charged/NMR/DLR who have been declared surplus for retrenchment and the list is free from any omission/commission, so as to avoid any legal complicacy in future. The information (both Hard copy & Soft copy) should reach this office within 30th November, 2011 positively along with a certificate to the effect that "The names of all the W/C/NMR/DLR who have been declared surplus for retrenchment have been incorporated in the list." This may be treated as URGENT. Yours faithfully, Sd/- Director, Personnel 7. On perusal of the impugned award, it appears that the Tribunal upon considering the respective cases and the materials available on record found that there was absence of evidence to show that the order of retrenchment was served on the workmen. Relying on the decision in the case of Shyam Sundar Rout v. OSRTC and others, 69 (1990) CLT 357, where this Court held that payment should be simultaneously complied with the order of retrenchment in order to constitute a single transaction, the tribunal found that no such order of retrenchment has been served on the workmen. The action of retrenchment was in violation of the provisions of the Act. The action of retrenchment was in violation of the provisions of the Act. Evidence led in support of the case of the management that in lieu of one month notice, wages for one month were paid to the retrenched workmen, was also not believed by the Tribunal due to want of particulars in the vouchers produced by the management under Exts. A, C and N series. The Tribunal, therefore, came to the conclusion that the management was duty bound to lead cogent documentary evidence clearly showing the amount paid to the workmen representing one month's notice pay; retrenchment compensation; arrear salary and gratuity, if any, of each individual workman. Payment of a lump sum amount without clarifying/substantiating the details of such payment made to the workmen cannot be said to be sufficient in compliance of the requirements of the Act. The Tribunal on the above basis found that there has been no proper compliance of the provisions of Section 25-F of the I.D. Act, which is mandatory. With regard to noncompliance of the provisions of Section 25-G of the I.D. Act, the Tribunal on considering the evidence adduced by the parties categorically found that the management has not based the order of retrenchment on a valid/proper gradation list to come to the conclusion that the workmen, who have been terminated/retrenched are junior most. Hence, the same is contrary to the provisions of Section 25-G of the I.D. Act. It also found that 23 numbers of N.M.Rs. in Prachi Division, Bhubaneswar who even joining after 12.4.1993 have been engaged by orders of the Government and are continuing. 8. Learned counsel for the management vehemently urged that as decided by the Supreme Court in the case of National Iron & Steel Co. Ltd. and others v. State of West Bengal, AIR .1967 SC 1206, offering or tendering the amount by the management to the workmen before the, date of retrenchment or termination is sufficient compliance under the statute. In the present case, payments made to the workmen should have been held to be in sufficient compliance of the provisions of Section 25-F of the I.D. Act. In the present case, payments made to the workmen should have been held to be in sufficient compliance of the provisions of Section 25-F of the I.D. Act. Reliance was also placed by the management on the decision in the case of In-charge Officer and another v. Shankar Shetty, (2010) 9 SCC 126 , in support of his contention that the petitioners (workmen) claim for full back wages as made out in W.P.(C) No. 3613 of 2010 is unsustainable. 9. Mr. Mishra, learned counsel for the workmen, on the contrary, submitted that no fault with regard to the finding of the Tribunal that the retrenchment of the workmen was illegal, can be found, as the Tribunal has discussed in detailed, the evidence adduced by the parties before it and placing reliance on the ratio of the decision in the cases of Promod Jha and others v. State of Bihar and others, 2003 (97) FLR 110 and Shyam Sundar Rout v. OSRTC, 69 (1999) CLT 357, has rightly found that there has been violation of the provisions of Section 25-F of the I.D. Act. He further submitted that this being a writ of certiorari, the Court while exercising jurisdiction under Article 226 of the Constitution is not required to enter into the questions of fact and that Court is not to act as a Court of appeal. He further contended that unless it is shown that there is any error of record or admissible and material evidence has not ... been admitted or inadmissible evidence affecting the findings has been admitted by the forum below, a writ of certiorari should not be issued. In support of his above contention, he relied upon the decision in the case of Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 SC 477 . 10. On perusing the judgments cited by the learned counsel for the respective parties, I do not find any necessity to reiterate the position of law which is well settled with regard to the exercise of jurisdiction of this Court under Article 226 of the Constitution for issuing a writ of certiorari against an order passed by any authority subordinate to the High Court. It is naive to state that by now it is well settled that the writ Court while considering the question of issuance of a writ of certiorari, is not to act as if it is a Court of appeal and enter into the realm of disputed questions of fact unless the order impugned in such writ petition clearly disclose commission of error of record, admissible evidence, refused to be admitted into evidence or passed without jurisdiction. In the instant case, no such fault can be found with the impugned order to be interfered with by issuance of a writ of certiorari. This Court further takes note of the fact that the Government in its Department of Water Resources has made a move for preparing and maintaining an inter se seniority list of NMRs or DLRs as well as Work-Charged employees working under the said Department in various projects either involved in Court cases or retrenched, for finalization of the process of re-engagement and posting of such retrenched employees as per the letters quoted above. This Court, therefore, comes to the conclusion that by taking such decision, the Government has accepted the impugned award and there is no scope for the management to challenge the same. Now coming to the question of payment of back wages as claimed by the workmen in W.P.(C) No. 3613 of 2010, this Court finds that law with regard to payment of full back wages when an order of reinstatement was passed in an industrial dispute in a reference made under the provisions of the I.D. Act, has in the meantime undergone radical change by the decisions of the Apex Court. Various aspects have been taken into consideration by the Supreme Court while laying down in the case of Jagbir Singh v. Haryana State Agriculture. Mktg. Board, (2009) 15 SCC 327 as follows: "7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement, will full back wages would ordinarily follow. Mktg. Board, (2009) 15 SCC 327 as follows: "7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement, will full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice. xxx xxx xxx 14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee." 11. Following the decision in the case of Jagbir Singh (supra), the Supreme Court in the case of Telegraph Department v. Santosh Kumar Seal, (2010) 6 SCC 773 held as follows: "11. In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would sub-serve the ends of justice." 12. In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would sub-serve the ends of justice." 12. The question with regard to entitlement of the workmen to full back wages for the period for which they were out of service due to illegal termination has also been exhaustively considered by this Court in the case of M/s. Bhubaneswar Electrical Division (GRIDCO) v. The General Secretary, OSEB Sramik Mahasangha and another, 2008 (Supp.-I) OLR 637, where this Court also took note of the several decisions of the Supreme Court and directed to pay 50% of the back wages from the date of retrenchment till the date of reinstatement without any interest. If is, therefore, clear that even when a termination/retrenchment is held to be illegal and reinstatement of a workman is directed, the workman is not entitled to full back wages as of right and the Court/Tribunal considering the facts and circumstances of the case may pass necessary orders directing payment of a percentage of back wages or lump sum amount in lieu of back-wages, as compensation. Applying the law as it stands with regard to payment of back wages and considering the facts of the present case as well as the submission made by Mr. Mishra on behalf of the workmen, this Court finds that it would be just and proper to direct the management to pay compensation of Rs. 30,000/- (Rupees thirty thousand) each to the retrenched workmen, in lieu of back wages. 13. In view of the above, W.P.(C) No. 457 of 2010 stands dismissed with a direction to the petitioner-management to reinstate the disputant available workmen in their previous places as N.M.R. employees from where they were retrenched in a phased manner according to their seniority as per the list to be prepared in accordance with the letters of the Government quoted above. Such exercise shall be completed within a period of three months hence. W.P.(C) No. 3613 of 2010 is disposed of by modifying the impugned award and directing that in addition to the directions issued/reliefs granted to the workmen as above, each of the workmen shall be paid Rs. Such exercise shall be completed within a period of three months hence. W.P.(C) No. 3613 of 2010 is disposed of by modifying the impugned award and directing that in addition to the directions issued/reliefs granted to the workmen as above, each of the workmen shall be paid Rs. 30,000/- (Rupees thirty thousand) as lump sum compensation, in lieu of back wages, by the management. Such payments shall also be made within the period as stipulated above. Ordered accordingly.