JUDGMENT S.U. Khan, J.
1. The employees whose cause is being espoused by the petitioner Union, were working as unskilled labourers of erstwhile Banaras/Varanasi Electric Supply Company since before 1.4.1969. Through U.P. Ordinance No. 37 of 1975 Section 6A was added to Indian Electricity Act, 1910. Through the said section Banaras Electric Supply Company and some other similar undertakings were acquired by the State Government from mid-night of 5/6 February 1975. The said Ordinance was replaced by U.P. Act No. 14 of 1976 effective from 27.11.1975, the date on which Ordinance was promulgated. Consequences of taking over and revocation of licence of Undertakings have been provided In Section 6-A (3). Clauses (a), (b) and g(i) of the said subsection are quoted below:
6-A(3) On revocation of the licence under Sub-section (2) the following provisions shall have effect, namely:-
(a) Every undertaking the licence, in respect of which stands revoked shall virtue of this section stand and be deemed to have stood transferred to and vest and be deemed to have vested in the State Electricity Board, hereinafter in this section called 'the Board' free from any debt, mortgage or similar obligation of the licence attaching to the undertaking:
Provided that any such debt, mortgage or similar obligation shall attach to the amount payable for the undertaking as mentioned in Clause (h);
(b) the rights, powers, authorities, duties and obligations of the licence under his licence shall stand transferred to the Board and the licence shall cease to have further operation;
(g) the following provisions shall govern the working in the undertaking immediately before the appointed day:-
(i) Every person who has been immediately before the appointed day in the employment of the licensee shall become on and from the appointed day an employee of the Board on the same terms and conditions and with the same rights as to pension, gratuity, and other matters as would have been admissible to him if the undertaking had not been transferred to and vested in the Board and continue to do so unless and until his employment under the Board is germinated or until his remuneration or other terms and conditions of employment are duly alter by the Board;....
2. In 1969 Central Wage Board for Electricity Undertakings was constituted. The Wage Board gave its report on 19.12.1969. The Government of India accepted the same by resolution dated 13.7.1970. Afterwards Government of Uttar Pradesh enforced the said recommendations under Section 3 of U.P. Industrial Disputes Act through notification dated 11.2.1971, as amended on 18.6.1971. Through the said notifications the recommendations of the Wage Board were made effective from 1.4.1969. At that time, the Banaras Electric Light and Power Company, which was having the licence for generation and supply of electricity in Varanasi area, was the employer of the concerned employees They were working as unskilled labourers. The said Company was taken over by U.P. State Electricity Board on 5/6th February 1975 and consequences of taking over were provided through the aforesaid ordinance of 1975 and Act of 1976.
3. This writ petition is directed against the Award dated 16.3.1984 given by Industrial Tribunal 1st U.P. at Allahabad in Adjudication case No. 2 of 1984.
4. The dispute which was referred to the Industrial Tribunal was to the effect that as to whether fitment of unskilled Labourers who were working In the pay scale of Rs. 30 -40 In the pay scale of Rs. 55-90 with effect from 1.4.1969 was proper and legal or not.
5. The Electricity Board granted the pay scale etc. as recommended by the Wage Board and applied by the U.P. Government w.e.f. 5/6th February 1975. However, the Electricity Board did not grant the benefit of the period of service from 1.4.69 till 5/6.2.1975 on the ground that till the latter date there was no relationship of Master and servant between them and the employees concerned. This is the bone of contention between the parties. Benefit of past service from 1.4.1969 till 5/6th February 1975 would have resulted in grant of further increments etc.
6. It was admitted by the Electricity board that apart from unskilled labourers the benefit of the wage board recommendations was extended to all other employees of ex-licensee Company taking in to account their past services from 1.4.69 till 5/6th February 1975. It does not appeal to reason as to why the employees who were at the lowest level of the wage structure were denied the benefit and were singled out for the said purpose. There might be some rationale in denying such benefits to those who were getting higher pay. However, there can not be any possible reason for denying this benefit only to those who were getting lowest wages. People getting lowest wages deserve financial assistance more than those who get more wages. The action of the Electricity Board was utterly arbitrary. Electricity Board being a Government Instrumentality can not act in an arbitrary manner. Denying the benefit to those who deserve it most and extending the benefits to those who deserve it less than the persons who have been denied the benefits is clearly arbitrary.
7. The main defence of the Electricity Board was that prior to 1975 the employees concerned were not its employees, hence for the said period it owed no obligation to them. The stand was clearly against the provisions of the Ordinance of 1975 and Act of 1976. By virtue of Section 6-A(3) (a) the acquired undertakings vested in the Electricity Board free from any debt mortgage or similar obligation of the licensee attaching to the undertakings. These words do not cover the obligations in respect of employees. Firstly the word 'obligation' is qualified by word 'similar' and 'similar obligation' succeeds debt and mortgage. It is therefore clear that obligation must have some relation with obligation arising out of debt or mortgage. Secondly debt, mortgage or similar obligations which are not binding upon the electricity Board are only those which were attached to the Undertakings. The obligation in respect of employees and their wages is not covered by the said clause. In respect of other obligations the provision was made under Clause (b) of the said sub section by virtue of which obligations of the licensee stood transferred to the Board. The two clauses read together clearly indicate that all obligations of the licensees except obligation attached to the Undertaking stood transferred to the Electricity Board. The position is amply clarified by Clause (g) (i) of the aforesaid sub-section. The employees of the licensees became employees of the Board after taking over on the same terms and conditions and with the same rights as to pension, gratuity and 'other matters' as could have been admissible to them, if Undertaking had not been transferred. The dispute in question is clearly covered by other matters. If the Undertaking had not been acquired then certainly the unskilled workmen would have been entitled to the benefit under the recommendation of the Wage Board as approved by the Government of Uttar Pradesh, accruing to them by virtue of their employment since 1.4.1969.
8. In the counter affidavit filed in this writ petition as well as during oral arguments learned Counsel for Electricity Board mainly emphasised upon the above aspect. The argument is wholly untenable hence rejected.
9. The Industrial Tribunal in para 11 of its Award has held that just 5 or 6 clays before the taking over i.e. On 30.1.1975 under the looming shadows of take over a Settlement took place In between Ex-Licensee and the employees Union and by virtue of the said Settlement the employees were not entitled to the benefit of their past services i.e. From 1.4.69 till 5/6 February 1975 in respect of benefits granted to them under recommendations of the Wage Board. Neither the copy of the said Settlement has been filed in this writ petition nor complete details thereof have been mentioned in the Award.
10. Even If there was any such settlement It will not be binding upon the employees as it would be against public policy. A person can give up all of his rights except three. One is fundamental right, the other is right based upon public policy and the third is right to object to jurisdiction of a Court, Tribunal or Authority. Wage Board was constituted to make recommendations for the reason that the wages of employees, particularly, lower grade employees in Electricity Supply Companies were highly inadequate. The benefits which were recommended to be given to such employees were purely in the nature of public policy. Therefore, even if it is assumed that just six days before the taking over any agreement for not claiming the said benefit took place, employees could not be bound by that.
11. Learned Counsel for the respondent-Electricity Board has cited an authority of the Supreme Court in Workmen v. Employers in relation to the Management of Industry Colliery of Bharat Coking Coal Ltd. and Ors.
12. In the said case the Supreme Court considered Coking Coal Mines (Nationalisation) Act (36 of 1972). Under Section 9(1) of the said act it was clearly provided that every liability of the owner of coking coal mines prior to the appointed date shall be the liability of such owner and shall be enforceable against him and not against the Central Government. The position was further clarified under Section 9(2) of the Act, according to which "for the removal of doubts it is hereby declared that save as otherwise provided elsewhere in this Act, no claim for wages, bonus, royalty, rate, rent, taxes, provident fund, pension, gratuity or any other dues in relation to a coking coal mines or Coke oven plant in respect of any period prior to the appointed date shall be enforceable against the Central Government or the Government Company". This provision is almost contrary to the provisions contained under Section 6-A (3) of Indian Electricity Act, as added by U.P. In 1975-76.
13. Learned Counsel for the petitioner has cited Karnataka Power Transmission Corporation Ltd. and Anr. v. Amalgamated Electricity Co. Ltd. and Ors. A.I.R. 2001 S.C. 291. In the said authority the Electricity Company had refused to re-employ certain previous employees of the Company which was taken over by Electricity Board. The Supreme Court held that Electricity Board was bound to reinstate the said employees as their services should be deemed to have been uninterrupted before taking over/transfer.
14. Accordingly writ petition is allowed. Impugned award in so far as it Is against the workmen is quashed. The amount payable to each concerned workmen in pursuance of this judgement shall be paid within six months.