JUDGMENT V.C. Misra, J.
Shri Vijai Bahadur Singh Senior Advocate assisted by Shri Vijai Sinha Advocate learned counsel for the petitioner, Ms. Sunita Agarwal learned counsel for the respondent No. 3-workman and learned standing counsel on behalf of respondents 1 & 2 are present.
1. The facts of the case in brief are that the respondent No. 3-workman was appointed as Turner in M/s Laxmi Devi Sugar Mills Private Limited on 9.4.1981 and was working continuously as such. His services were illegally terminated on 30.6.1991. The petitioner raised an industrial dispute and a reference was made on 23.4.1985 to the Labour Court. Meanwhile, the U.P. State Sugar Corporation-petitioner acquired the Laxmi Devi Sugar Mills Private Limited, Deoria under The U.P. Sugar Undertaking (Acquisition) Act, 1971 (hereinafter referred to as the Acquisition Act). An impleadment/substitution application was filed on 14.8.1985 by the petitioner before the labour Court seeking impleadment of U.P. State Sugar Corporation having its Unit at Chitauni, Deoria (hereinafter referred to as the Corporation) and substitution of M/s Laxmi Devi Sugar Mills Private Limited. No objections to the said application were filed and the application was allowed on 24.2.1986. After hearing both the parties the labour Court gave an award-dated 29.3.1988 directing reinstatement of the petitioner with effect from 30.6.1982 with continuity in service and entire back wages.
2. The dispute raised by the petitioner-Corporation before the labour Court was that, since the Corporation came into existence in 1984 as such the Corporation was not accountable of any past liability, and that the respondent No. 3-workman had not completed 240 days of continuous services contemplated under Section 2-G of the U.P. Industrial Disputes Act (hereinafter referred to as the Act) and as such the provisions of Section 6-N were not attracted. The labour Court while passing the award arrived at the conclusion that Corporation was accountable for all the disputes pending with regard to the past employer and the orders passed in the pending cases before any Court of law shall be enforceable against the Corporation. Regarding validity of the termination order, the labour Court held that the services of respondent No. 3-workman had been wrongly terminated and it violated the provisions of Section 6-N of the Act in terminating the services of the workman.
3. Being aggrieved, the Corporation filed the present writ petition against the award-dated 29.3.1988. A conditional interim order was passed on 24.7.1990 by this Court with the condition that the workman be taken in service within a period of three weeks from the date of the order and be paid wages month by month regularly. The respondent No. 3-workman was reinstated on 16.8.1990 and thereafter continued to work.
4. Learned counsel for the petitioner has submitted that the respondent No. 3-workman was not the employee of the petitioner and had not worked for more than 240 days in one calendar year and prior disputes of employment etc. are dispute between the workman and the old management. The relevant portion of Section 3 of the Acquisition Act No. 23 of 1971, reads as follows:-
"3. Vesting. - On the appointed day, every schedule undertaking shall by virtue of this Act, stand and be deemed to have stood transferred to and vest and be deemed to have vested in the Corporation free from any debt, mortgage, charge or other encumbrance or lien, trust or similar obligation (excepting any lien or other obligation in respect of any advance on the security of any sugar stock and other stock in trade attaching to the other undertaking......."
Section 7 of the aforesaid Act provides the manner of determination of compensation payable to the old owner and under Section 8 of the Act, various claims of the parties are to be satisfied and if the claim is proved the same has to be paid to the parties out of the amount of compensation worked out to be payable to the old employer. Under Section 8(5) of the Act, it is provided that if a person is employee under the sugar factory before the appointed date he does not ipso-facto become an employee of the Corporation but can raise claim of salary and wages of the earlier period with the old employer, under Section 10 of the Act the prescribed authority has been constituted to determine and decide such disputes. The present dispute admittedly had arisen on 30.6.1982 when the Corporation was not in existence. It has been further submitted that it was open for the respondent No. 3 to have raised the dispute under Section 16(3) of the Act before the prescribed authority was appointed under Section 10 of the Acquisition Act No. 23 of 1971. The dispute certainly cannot be decided under the U.P. Industrial Disputes Act and the State Government was not competent to make a reference to the labour Court since, no relationship of master or servant existed between the petitioner-factory and the respondent No. 3 as on the date the Corporation came into existence and took over the present sugar factory with effect from 28.10.1984 as admittedly, the respondent No. 3 was not an employee of the sugar factory as per Section 2-L of the Act. Under the Industrial Disputes Act only industrial dispute between the employer and employee can be referred or decided and as such the reference as well as the award was a nullity. Lastly, it has been submitted that since the petitioner agreed to and accepted the amount of Rs. 1,08,464/- wholesome as per his acceptance in the declaration Form of Voluntary Retirement Scheme dated 15.12.2000, a copy of which has been annexed as annexure-SA-3 to the Supplementary Affidavit filed by the petitioner dated 4.7.2004, the workman had no case.
5. Learned counsel for the respondents has relied upon the decision in Writ Petition No. 9950 of 1999 U.P. State Sugar Corporation Ltd. v. The Presiding Officer and Ors. reported in 1999 (2) AWC-1777 Wherein an employee of M/s Laxmi Devi Sugar Mills (P) Ltd., Chitauni, Deoria, which was acquired under the provisions of the Acquisition Act 1971, this Hon'ble Court held that the workman shall be deemed to be in services of the Corporation through out i.e., from the date of vesting as the order terminating his services was illegal. Since, the workman was employed exclusively in connection with schedule undertaking immediately before the appointed day he became an employee of the Corporation and continued to hold the office by same tenure, at the same remuneration and upon the same terms and condition and the same liability and privileges as he was enjoying, and the schedule undertaking and the service conditions were not to stand altered on account of the taking over in view of provisions of Section 16 of the Act.
6. Being aggrieved by the judgment and order dated 27.3.1999 passed by this Court in the above said Writ Petition No. 9950 of 1999 U.P. Sugar Corporation Ltd. v. The Presiding Officer and Ors., a Special Leave Petition was filed by the Corporation before Hon'ble Supreme Court. The Special Leave Petition was also dismissed on 23.8.1999. By interim order dated 24.7.1990 passed in the present writ petition, the respondent No. 3-workman was allowed to join and work and he has been paid wages month by month regularly from the date of joining of services in the corporation. Vide order dated 12.11.1999, the production activity in the petitioner unit stopped permanently w.e.f. 1999-2000 season. Thereafter, a voluntary retirement scheme was floated. The petitioner applied on 15.12.2000 under Voluntary Retirement Scheme. The application of the petitioner was accepted on 16.12.2000. While concluding the dues and benefits of Voluntary Retirement Scheme, the petitioner-corporation is counting the period of service of the respondent No. 3-workman only from 16.8.1990 i.e., the date on which he was taken back on work pursuant to the interim order passed by this Court dated 24.7.1990.
7. The learned counsel for the respondent has further submitted that since an award has already been passed in favour of the respondent No. 3-workman, and he has been reinstatement in service as such the petitioner-corporation is bound to calculate the dues and benefits of the Voluntary Retirement Scheme, counting the services of the petitioner w.e.f. 9.4.1981, in terms of the Judgment dated 27.3.1999 in Writ Petition No. 9950 of 1999, but the corporation has grossly erred in law in counting the services of respondent No. 3-workman only from 16.8.1990.
That the controversy with regard to termination of services of the respondent No. 3-workman has been decided by the Labour Court in favour of the workman. The effect and operation of the award already passed in favour of the workman cannot be taken away merely by acceptance of Voluntary Retirement Scheme, though no payment has been made under the scheme till date. The existing claim of the workman, which has already been upheld by a Court of law, which is also subject matter of the instant petition, will not cease.
The labour Court has recorded a finding that the respondent No. 3-workman had worked for the entire period of one year and his services had been terminated in violation of the provisions of Section 6-N of the U.P. Industrial Disputes Act, and once the offer of voluntary Retirement Scheme had been given to the respondent No. 3-workman, it means that the petitioner-Corporation has accepted that the respondent No. 3-workman is an employee of the corporation and the claim of the respondent No. 3-workman having been adjudicated and upheld, the petitioner-corporation is estopped from saying that the services of the petitioner prior to 16.8.1990 will not be counted while calculating the dues and benefits of Voluntary Retirement Scheme.
That no amount has actually been disclosed in the order passed by the Chief Manager dated 15.12.2000 annexed along with the said annexure-SA-3 filed by the petitioner and no amount whatsoever has been paid in terms of the said Voluntary Retirement Scheme claim till date and, therefore, the respondent No. 3-workman was entitled to the entire back wages as granted by the labour Court with effect from 30.6.1982 to 16.8.1990 and the Corporation was bound to calculate the dues and benefits of Voluntary Retirement Scheme counting the services of the petitioner with effect from 9.4.1981, i.e., the date of appointment along with interest.
8. I have looked into the record of the case and heard learned counsel for the parties at length and find that, the decision of the case of U.P. State Sugar Corporation Limited v. The Presiding Officer and Ors. reported in 1999 (2) A.W.C. page 1777 is fully applicable to the facts of the present case, and the respondent-workman is entitled to the entire back wages as granted by labour Court with effect from 30.6.1982 to 16.8.1990 amounting to Rs. 93,490/- along with interest at the rate of 10% per annum. The respondent No. 3-workman is also entitled to the benefits of the Voluntary Retirement Scheme as accepted by the petitioner-Corporation counting his services with effect from 9.4.1981 along with interest at the rate of 10% per annum. I also find that after thorough examination and critical scrutiny of the pleadings and relevant material and evidence brought on record, the respondent no. 1 has arrived at a well-reasoned award dated 29.3.1988 (annexure-6 to the writ petition). The petitioner has not been able to demonstrate before this Court that the findings of fact recorded in the impugned award suffers from any illegality or error apparent on the face of the record. More so, the said findings of fact, arrived at by the respondent on the basis of which the impugned award has been passed, being based on relevant material on record, is not open to challenge before this Court while exercising its special and extra ordinary jurisdiction under Article 226 of the Constitution of India. The writ petition is dismissed with no order as to costs.