JUDGMENT S.K. Keshote, J.
1. This writ petition has been filed by the U.P. State Sugar Corporation Ltd. Unit Pipraich. The Corporation manufactures at its said unit sugar by vacuum pan process. The conditions of service of the workmen employed in vacuum pan sugar factories in the State of U.P. are being regulated by the standing orders framed in exercise of the power conferred by Section 3 of the U.P. Industrial Disputes Act, 1947 (hereinafter referred as the Act, 1947). The relevant standing orders were published by notification dated October 3, 1958.
2. 80 Workmen in number which includes the respondents No. 2 to 13 worked throughout the season 1974-75 in the factory of the petitioner at Pipraich. Though all of these workmen were performing the job directly connected with the manufacturing process and they reported for duty on December 2, 1975 crushing season 1975- 76 but they were not allowed to resume their duties. When all efforts failed an industrial dispute has been raised by the Union. The conciliation proceedings failed, as such the State of U.P. vide its notification dated December 8, 1977 made a reference of the dispute under Section 4-K of the Act, 1947. The Industrial Tribunal (iv) U.P. at Lucknow registered the dispute as Adjudication Case No. 162 of 1977. The reference has been decided by the Industrial Tribunal and award has been passed therein on November 28, 1980 and out of 80 workmen claim of 13 workmen i.e. respondent Nos. 2 to 13 has been accepted. The operative part of the award reads as under:
"10. The next point that arise is to what relief the above workmen are entitled. There is nothing to show that the employers had not the financial capacity to bear the burden of the payment of the retaining allowance. The retaining allowance is paid to seasonal workmen in order to enable the workmen to tide over the period of the unemployment. The workmen shall be entitled to get retaining allowance for the off season 1974-75 and further they shall be entitled to one month's wages as compensation with respect to non-employment in 1975-76. The crushing season had lasted for two months only in that year. As regards their claim that the employer should be directed to take them in subsequent season as workmen, it cannot be granted in those terms. Those who actually worked in the crushing season 1975-76 would be entitled to preference over those to whom the retaining allowance and compensation had been awarded will have preference over new man provided they applied for employment. The right to re-employment during any season accrues to a workman only if he had worked in the factory during the preceding seasons and, therefore, those who had actually worked in the factory in 1975-76 would have preference over the workmen to whom retaining allowance and compensation is paid.
For the above the reference is decided in these terms (a) Mahendra, Nav Ratan Sant, Hari Prasad s/o Algoo, Bikay, Ram Prit and Mithai were the seasonal employees of the Corporation during the crushing season 1974-75 working as Donga Coolies and Krishna Murari, Sudama, Ram Jeet, Ram Deo, Lal Bahadur, Safrul Haq were the boiler coolies employed by the Corporation during the crushing season 1974-75. In the next season they had offered themselves to the company to employ them as such but the company without any jurisdiction refused to employ them.
The said workmen are entitled to the retaining allowance admissible to the workmen of their category for the off season 1974-75. They will also get one month's wages as compensation on the rate admissible to the workmen of their category during the crushing season 1975-76. Those who actually worked in 1975-76 would be entitled to preference over these workmen, but if there are vacancies these workmen will have preference over the new men provided they apply for employment in the factory in the succeeding seasons. In the circumstances no order as to cost is made."
(b) The claim of the workmen other than those specified in the above stands dismissed.
11. Let a copy of this award be sent to the State Government for information and necessary action."
3. The award dated November 28, 1980 has partly been complied with by the petitioner. The respondent Nos. 2 to 13 have been paid retaining allowance admissible to their category for off season 1974-75. They have also been paid one month wages as compensation on the rate admissible to those of their category for the crushing season 1975-76. The award dated November 28, 1980 has not been challenged by the petitioner and as such it attained finality. The Employees Union, Pipraich Gorakhpur filed a special leave petition before the Apex Court under Article 136 of the Constitution of India against the award to the extent it relates to the rejection of the claim of 67 workmen. The said S.L.P. has been dismissed on September 5, 1983. As the part of the award was not complied with an application under Section 33-C (2) of the Industrial Dispute Act, 1947 has been filed before the Labour Court, Gorakhpur by the respondent Nos. 2 to 13 on June 19, 1984. In the application it has been stated that the employer, the petitioner, has made many new appointments during the crushing season 1976-77 but they were not taken in service despite of the fact that they were available for the employment. Similarly they were not taken in employment in the seasons 1977-78 to 1983-84 though they made request to the management from time to time in all seasons. A detailed reply to the said application has been filed. A rejoinder to reply which has been filed by the petitioner has also been filed on behalf of the respondent Nos. 2 to 13. Both oral and documentary evidence have been produced before the Labour Court, Gorakhpur by the parties in support of their respective cases. In the oral evidence the statement from the side of workmen Shri Bans Bahadur Singh (S.W. 1) Nav Ratan (SW 2) and Krishna Murari (SW 3) were recorded. From their side the copy of the applications which have been submitted by them to the management for taking them in the employment have been produced. From the side of the management in the oral evidence the statement of Shri Kripa Shanker Srivastava were recorded as W-1. The learned Labour Court, Gorakhpur vide its order dated August 22, 1985 decided the application filed by the respondent Nos. 2 to 13. It has been held that new appointments have been made in the crushing seasons of 1975-76 to 1977-78 and despite of the reported request made by these workmen they were not taken in the employment and as such the award has not been complied with. The petitioners were held to be entitled for the benefits of wages, bonus and retaining allowance as claimed by them. The Labour Court has ordered for payment of Rs. 19,199.30 as wages, Rs. 1,682.84 as bonus, Rs. 2,498.13 as retaining allowance to each of the workmen. The petitioner filed this writ petition before this Court against the order of the Labour Court, Gorakhpur dated August 28, 1985 and prayed therein for quashing of the same. A counter-affidavit has been filed of Shri M.P. Singh on behalf of the respondent No. 1.A counter affidavit of Shri Narrotam, respondent No. 3, has been filed in the present case and contested the claim of the petitioner. A supplementary counter affidavit has been filed by the respondent No. 3 along with which 7 documents have been enclosed. A rejoinder to the counter-affidavit is filed by the petitioner. The petitioner has also filed a supplementary -affidavit along with which a document has also been filed. The writ petition has been admitted by this Court on November 15, 1985. On the same day the operation of the order dated August 22, 1985 passed by the Labour Court, Gorakhpur has been stayed. The ad-interim stay order dated November 15, 1985 has been modified by this Court on March 24, 1985 and the order of the Labour Court dated August 22, 1985 was stayed on the condition that the petitioner shall deposit 1/4 of the amount due under the said order with the Labour Court, Gorakhpur within one month from the said date. The respondent Nos. 2 to 13 given liberty to withdraw the said amount on furnishing of security to the satisfaction of the Labour Court. Under the aforesaid order the amount of Rs. 70,144.00 has been deposited by the petitioner in the Labour Court and this amount has already been withdrawn by the respondent Nos. 2 to 13. These facts do come out from the documents which have been filed by the parties in the writ petition.
4. The learned counsel for the petitioner has argued that the award dated November 28, 1980 remained in operation for a period of one year i.e. up to November 27, 1981 and the State Government has not extended the period of operation thereof and as such it has ceased to have any legal force. As the award has come to an end or having no legal force after expiry of the period of one year the application filed by the respondent Nos. 2 to 13 under Section 33C (2) of the Act, 1947 on June 19, 1984 before the Labour Court was not maintainable. The Labour Court has no jurisdiction to make any computation of the amount of the wages, bonus and retaining allowance under Section 33-C (2) of the Act, 1947. It has next been argued by the learned counsel for the petitioner that as per the award dated November 28, 1980 the respondent Nos. 2 to 13 would have been given preference in the matter of appointments in case vacancies would have been there and new appointments would have been made in the succeeding crushing seasons subject to further condition that these workmen applied for the employment, the learned Labour Court, Gorakhpur has exceeded its jurisdiction in passing of the order in their favour. Lastly, learned counsel for the petitioner has argued that the finding of the Labour Court is perverse on the face of it. The documents of SW-4 and SW-6 have been misread. Replying to the argument of the learned counsel for the petitioner Shri Shyam Narain, learned counsel appearing for the respondent Nos. 2 to 13, has argued that the learned Labour Court, Gorakhpur has recorded a finding of fact and this Court while sitting under Article 226 will not act as a Court of appeal. He further argued that it is an admitted case of the petitioner before the Labour Court that the workmen respondent Nos. 2 to 13, had applied for taking them in the employment for the season 1976-77 and for the next succeeding seasons but despite of the fact that they applied, the new appointment has been made by the employer and they were not taken in the employment. The reference has been made by the learned counsel for the respondent Nos. 2 to 13 to para Nos. 3 and 4 of the application filed by them under Section 33-C (2) of the Act, 1947 and para Nos. 3 and 4 of the reply to the application filed by the petitioner and argued that the averments made in para 3 has been admitted whereas so far as the averments in para 4 of the application are concerned the same were not specifically denied. He further argued that from the statement of Shri Kripa Shanker Srivastava who has been examined on behalf of the petitioner it comes out that he has also in substance admitted the aforesaid fact by showing his ignorance regarding the fact whether the applications were submitted or not by the respondent Nos. 2 to 13. Learned counsel for the workmen by referring to the statement of Sri Bans Bahadur Singh and other two witnesses argued that they have also categorically stated that these workmen have applied for their employment in the season 1976-77 and next seasons. From the oral and documentary evidence it has been proved that new appointments have been made, the applications were submitted by the respondent Nos. 2 to 13 but they were not given the employment. By referring to the provision of Order 8 Rules 3, 4 and 5 C.P.C. 1908 learned counsel for the respondents have argued that in the absence of specific denial of the facts the same should have been considered admitted. In support of his aforesaid submission reliance has been placed on the decision of Apex Court in the case of Kewal Krishna v. Dina Nath 1992 (2) SCC 51. Replying to the argument of the learned counsel for the petitioner that the award has come to an end, learned counsel for the respondents argued that it remains award even after expiry of the period of operation and has legal force and the benefits arising thereunder could have been computed by Labour Court under Section 33-C (2) of the Act, 1947. After expiry of the period the award has become the agreement between the parties thereto. Even after expiry of period of operation the award shall continue to be binding on the parties until the period of two months elapse from the date of which notice has been given by any party bound by the award to the other party intimating its intention to terminate the same. Learned counsel for the workmen by referring to the documents i.e. notices of the petitioner dated February 18, 1990 which has been given to the workmen Shri Mahendra, Krishan Murari, Sudama and Lal Bahadur argued that till the said date the petitioner has not terminated the award and the Labour Court has rightly taken and computed the benefit in favour of the respondent Nos. 2 to 13.
5. He has further argued that there is no provision under the U.P. Act, 1947 which provides that after expiry of the time of operation of the award the workmen concerned will not get any benefit whatsoever under or in pursuance of the said award. The provision of Section 33-C (2) of the Act, 1947 or provision of Sub-section 2 of Section 6-H of the State Act, 1947 nowhere bars the jurisdiction of the Labour Court to compute benefits in favour of the workmen under the award the operation of which has come to an end. Lastly, referring to the Clause E of the Standing Order of 1958 he argued that it was the duty of the petitioner to give the employment to the respondent Nos. 2 to 13. In support of his argument the learned counsel for the respondent has placed reliance on the following cases:
1. South Indian Bank Ltd. v. A.R. Chacko (1964-I-LLJ-19).
2. Vishnu Das v. State of U.P. and Ors. 1974 LIC 1287.
. Uttar Bharat Woollen Mills Pvt. Ltd. v. Shyam Lal Sharma and Ors. 1976 LIC 102.
4. Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation (1985-II-LLJ-539).
5. National Engineering Industries Ltd. v. Shri Kishan Bhageria and Ors. (1988-I-LLJ-363).
6. Learned counsel for the petitioner argued that the Labour Court had committed a serious error of jurisdiction to entertain and allow the application filed by the respondent Nos. 2 to 13 under Section 33-C (2) of the Act, 1947. The day on which the said application has been filed the award dated November 28, 1980 was not in operation. Though limitation has not been prescribed but workmen should have filed the application within reasonable time for filing of an application under Section 33-C (2) of the Act, 1947. Sub-section 2 of Section 33-C (2) of the Act, 1947 reads as under:
"Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government (within a period not exceeding three months).
(Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit)".
7. Learned Counsel for the petitioner has failed to refer any provision of the Act, 1947 which bars the jurisdiction of the Labour Court to grant the relief of the concerned workmen under the Sub-section (2) of Section 33 (c) (2) of the Act, on 1947, on the ground that the award passed in their favour Was no more in operation.
8. Learned Counsel for the respondents -workmen has argued that the award is a binding settlement between the parties and even after expiry of the period of the same it remains binding in between them until the period of two months lapse from the date on which the notice has been given by either of the party intimating its intention to terminate the same. The notice of the termination of the award/settlement was given by the management on February 18, 1990 to the concerned workmen.
9. I find considerable force in the argument of the learned counsel for the respondents/workmen. The Labour Court could have computed the benefits which are available to the workmen under the award which remains to be a binding settlement after expiry of the period of the operation of the award. A mere perusal of Section 19 (6) of the Act, 1947 makes the position clear that even after the expiry of the period of operation of the award it continues to remain binding till the same has been terminated in accordance with the said provision by either of the parties.
10. Learned counsel for the petitioner by referring to the decision of the Apex Court in M.P. Electric Supply Company Ltd. v. R.K. Shukla and Ors. AIR 1970 SC 237 has argued that there is no corresponding provision under Section 6-H of the U.P. State Industrial Disputes Act, 1947 as sub section 6, of the Section 19 of the Central Act, 1947. The State Act haying received assent of the President would prevail over the Central Act and as such no benefits could have been given to the respondent Nos. 2 to 13 of the provision of Subsection (6) of Section 19 of the Central Act, 1947. He has further placed the reliance on the decision of this Court in A. Tellery and Sons v. Carpet Mazdoor Sabha. 1961 (3) FLR 92 (Alld). Learned counsel for the workmen by placing reliance on a decision of Apex Court in South Indian Bank Ltd. v. A.R. Chacko (supra) argued that even if an award has ceased to be in operation or ceased to be binding on the parties under the; provision of Section 10(6) of the Central Act, 1947 it will continue to have its effect as a contract between the parties as made on Industrial Adjudication. Referring the decision of Apex Court in A. Tellery (supra) he argued that after expiry of the period of the award it is not of a temporary character but is of permanent character giving benefits permanently, it would be deemed to be part and parcel of conditions of services. Learned counsel has further argued that irrespective of the fact that the award was not in operation the Labour Court was fully justified and has jurisdiction to compute the benefits arising out of the binding contract or terms of the service conditions. In support of his arguments the learned counsel has placed reliance on the decision of this Court in U.P. State Electricity Board v. Prescribed Authority, Agra (1994-II-LLJ- 421). I have considered the contentions of the learned Counsels for the parties.
11. In the State Act there is also no provision corresponding to the provision of Section 19(6) of the Central Act, 1947. But there is also no provision which disentitles the concerned workman to get any benefit arising out of the award which is not in operation. The award in question gives the benefit of permanent nature to the concerned workmen. The petitioner was accepting this award also binding upon it even after the expiry of the period of the operation, otherwise there was no reason on its part to terminate the said award. The petitioners did not raise specific objection before the Labour Court in this respect. The only objection taken was that the matter does not fall under Section 33-C (2) of the Act, 1947. This Court in the case of Uttar Bharat Woollen Mills Pvt. Ltd. v. Shyam Lal Sharma and Ors. 1976 LIC page 102 (supra) relying on the previous Full Bench decision reported in 1974 LIC page 1287 decided that both the Central and State Acts are applicable in the State of U.P. and workmen make an application either under Section 6-H (2) State of U.P. Act or Section 33C(2) of the Central Act. In the absence of any contrary provision in the State Act, 1947 or the Central Act after expiry of the period of award it becomes a binding contract between the parties and constitutes service conditions. The learned Labour Court has not committed any illegality whatsoever in giving of the relief to the respondent Nos. 2 to 13 in the present case, The petitioner has submitted itself to the jurisdiction of the Labour Court and only when the decision has been given against it, it has raised this point in the writ petition.
12. Learned counsel for the petitioner next argued that the finding of the Labour Court that these concerned workmen have applied for taking them in the employment for the season 1976-77 and for the next succeeding seasons is perverse on the face of it. Learned counsel for the petitioner argued that the industrial dispute has been decided and the award has been passed in this case by the Labour Court on November 28, 1980 and as such there was no occasion to the workmen to approach the petitioner for giving them the employment for the crushing season 1976-77 and for next season earlier to the said date. He further argued that the documents which have been produced by the workmen be fore the Labour Court pertain to 1983-84 and for the years 1976-77 and thereafter. Under the document Annexure-7 which is dated December 27, 1983 the prayer has been made for giving the employment to the respondent Nos. 2 to 13 in the crushing season of 1983-84. The next application of Annexure-9 is for the crushing season 1984-85. A reference has also been made to the decision of S.L.P. by the S.C. on September 5, 1983. He argued that the finding of the Labour Court that from the oral evidence and documentary evidence SW-4 to SW-6 it has proved that the respondents/workmen in accordance with the award made a request for the employment in the season after 1975-76 is perverse on the face of it. Learned counsel for the workmen on the other hand argued that in the pleadings it has been admitted by the management that these workmen had submitted their applications for giving them the employment in the crushing seasons 1976-77 and in the next succeeding seasons.
13. I have considered the arguments of both of the learned counsels. Learned Labour Court based his finding on the question of submitting of the application for employment on the documents which only pertains for giving the employment in years 1983-84 and 1984-85. The finding which has been given by the Labour Court on the basis of these documents that the respondent Nos. 2 to 13 have applied for the employment for crushing season 1975-76 and succeeding seasons is based on misreading of these documents. Even otherwise also the Labour Court has not considered an important aspect of the case that the award in favour of the respondent Nos. 2 to 13 have been passed only on November 28, 1980 and as such there was no occasion for these persons to make the application for employment in pursuance of the award for the period earlier to date of the said award. So far as the question of the specific denial of the averments in the reply of the application by petitioner is concerned, it is suffice to say that the Labour Court itself has not given the finding in the present case on the basis of those alleged admission. The strict provisions of C.P.C. 1908 are not applicable to the proceedings before the Labour Court. Apart from this from the evidence which has been produced by the workmen their case has not been proved. It is an important fact which has altogether been ignored by Labour Court that it is unbelievable that even prior to the decision of the Labour Court these workmen would have claimed their right which has accrued to them under the award. In para 3 of the application it has not been mentioned that the workmen had made any application for giving them the employment. Similarly is the case of the pleadings of para No. 4 of the application. The respondents have not produced any document to prove and establish as a fact that these workmen ever applied for the employment for crushing season earlier to 1982-83. In presence of all these facts there is no substance in the argument of learned counsel for the respondents that the facts have been admitted by the petitioner. The averments made in para No. 4 of the application has been denied by the petitioner. The Labour Court without discussing the evidence of the parties has recorded a finding on the question of submission of the application by the respondent Nos. 2 to 13 for giving them the employment in the crushing season 1976-77 and succeeding seasons. In this case evidence has been produced by the workmen and witnesses produced by them have been cross-examined. The Labour Court has proceeded in the case in most cursory manner. Without discussing the evidence of the party it has recorded a finding of a fact. It has come out from the award of the Labour Court that the workmen whose statements were recorded and the reference of which has been made in the award nowhere stated that they submitted the application for giving them the employment. It comes out from the award of the Labour Court that at the most the workmen presented themselves for the employment on the starting of crushing season at the mill, but it cannot be believed as before award and decision of S.L.P. they could not have presented themselves also. I found considerable weight and force in the argument of the learned counsel for the petitioner that these workmen submitted application for employment only after decision of the S.L.P. In view of these facts I am satisfied that the finding of the Labour Court on the question that the respondent Nos. 2 to 13 in accordance to the order of the Labour Court dated November 28, 1980 has applied for the employment after the crushing season 1976-77 and succeeding seasons mainly based on surmises and conjectures. From the evidence which has been produced by both the parties it is a case where these workmen applied for employment only for the crushing season 1983-84 and 1984-85 not for earlier years.
14. Learned Labour Court has not considered that the award in the present case has been passed on November 28, 1980 and by that time the crushing seasons of 1976-77, 1977-78, 1978-79, and 1979- 80 have already come to an end. The award only contemplated for giving of the employment to these workmen in the factory in the succeeding seasons but as far as the workmen who actually worked in the year 1975-76 were given the preference. Their right of employment has been accepted subject to the availability of the vacancies. The rights of the employees who had actually worked during the crushing season 1975-76 has been protected. The Labour Court considered the matter and held that vacancies were available after giving the preference to the workmen who actually worked in the crushing year 1975-76. In view of the facts though the respondents Nos. 2 to 13 would have been entitled for employment but not for crushing seasons in which they have not applied for the same. The learned Labour Court has committed a serious illegality in holding that the workmen are entitled for salary/wages, bonus and retaining allowances for the crushing seasons 1976-77 and succeeding seasons.
15. In the result the writ petition is partly allowed. The order of the Labour Court dated July 28, 1985 is set aside and it is declared that the workmen/respondents Nos. 2 to 13 are not entitled for any wages, bonus or retention allowances for the crushing seasons 1976-77 to 1982-83. For computation of the benefits which are being payable in terms of money by the petitioner to respondent Nos. 2 to 13 of the wages, bonus and retaining allowances for the crushing seasons 1983-84 and 1984-85, the matter is remanded to the Labour Court, Gorakhpur with the directions to decide the matter within six months of the filing of the certified copy of this judgment by either of the parties to the writ petition. In pursuance of the order which has been passed on the stay application by this Court the workmen have already been paid Rs. 70,144/- by the petitioner. The petitioner shall be entitled to deduct this amount from the amount which ultimately is found payable by the Labour Court to these workmen by the petitioner after remand. The parties are left to bear their own costs.