British India Corporation vs Collector And Others
2015 Latest Caselaw 3 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 7
 
Case :- WRIT - C No. - 3363 of 2013
 
Petitioner :- British India Corporation
 
Respondent :- Collector And Others
 
Counsel for Petitioner :- Chandra Bhan Gupta
 
Counsel for Respondent :- C.S.C.,Ashish Agrawal,Ashok Agrawal,H.N.Dubey,S.N. Dubey
 
And
 
Case :- WRIT - C No. - 12195 of 2012
 
Petitioner :- The British India Corporation Limited
 
Respondent :- Add. Labour Commissioner And Others
 
Counsel for Petitioner :- Anoop Trivedi
 
Counsel for Respondent :- C.S.C.,Jai Singh,S.N. Dubey
 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Chandra Bhan Gupta, learned counsel for the petitioner, Dr. Madhu Tandon, learned standing counsel for the Respondent Nos. 1,2,3 and 5 and Sri S.N. Dubey, learned counsel for the Respondent No.4. No one appears for the respondent No.6.

2. In Writ Petition No. 12195 of 2012 the petitioner has challenged the order dated 24th January, 2012 passed by Respondent No.2 under Section 6 H (1) of the U.P. Industrial Dispute Act, 1947 (hereinafter referred to as the U.P. Act) directing the petitioners to pay to the Respondent No.3 Sri Lal Mohan Verma (workman) a sum of Rs. 74,484/- in satisfaction to the award dated 16th March, 1988 passed in adjudication Case No. 276 of 1980 and 41 of 1982. In writ petition No. 3363 of 2013 the petitioner has challenged the order dated 3.12.2012 passed by the Deputy Labour Commissioner under Section 6H (1) of the U.P. Industrial Dispute Act, 1947 for payment of Rs. 1,68,186/- to the respondent No.4 for the period 1.6.2010 to 31.5.2012 with reference to the same award as aforenoted.

3. Since common question of fact and law are involved in both the writ petitions, as such, both the writ petitions are heard together and decided with the consent of the learned counsel for the parties. The Writ Petition No. 3363 of 2013 is treated to be leading writ petition.

4. Learned counsel for the petitioner submits that the impugned order dated 3.12.2012 passed by the Respondent No.3 under Section 6 H (1) of the U.P. Industrial Dispute Act, 1947 (hereinafter referred to as the U.P. Act) is wholly without jurisdiction and consequently the impugned citation dated 18.12.2012 issued by Respondent No.5 is also void ab initio. He submits that the petitioner is a central government company and the central government has deep and pervasive control over its affairs and, as such, the appropriate government can be the Central Government and only the provisions of Industrial Disputes Act, 1947 may be applicable. The entire proceedings initiated by Respondent No.4 and the impugned order passed by Respondent No.3 under Section 6 H (1) was wholly without jurisdiction. He submits that initially the petitioner was a private Ltd. company but subsequently under the British (Acquisition of Shares) Act 1981 promulgated by the President on 11th June, 1981, the company was acquired and all the properties and all the shares of the company stood transferred to the central government. He alternatively submits that in any circumstances the impugned order passed by the Respondent No.3 is wholly without jurisdiction for reason that the award was passed on 17th March, 1988 in favour of the Respondent No.4 and the same was complied with by the petitioner by sending a registered letter dated 15th June, 1988 to the Respondent No.4 offering him to join pursuant to the said award. However, the Respondent No.4 did not join. The receipt of this letter by the Respondent No.4 is wholly undisputed. Subsequently he filed Writ Petition No. 19760 of 1988 through the union but thereafter moved an application in March, 2005 to permit him not to press the writ petition and the other workmen who were petitioners in that writ petition may be allowed to press the writ petition. The said application was allowed by this Court vide order dated 16th March, 2005. In that writ petition there is no whisper or denial with respect to letter dated 15th June, 1988 sent by the petitioner to the Respondent No.4 offering him to join in compliance to the award not later than 30th June, 1988 in compliance to the letter dated 16th March, 1988. He further submits that the petitioner was permitted to join due to an interim order dated 23rd March, 2006 passed by this Court in Writ Petition No. 69980 of 2005. This writ petition was filed by the present petitioners challenging the order dated 22nd October, 2005 passed under Section 6 H (1) of the U.P. Act in favour of the present respondent No.4 whereby the petitioners were directed to pay to the Respondent No.4 a sum of Rs. 6,66,727/-. However this writ petition was dismissed in default on 14th March, 2007. He further submits that in any circumstances the claim made by the Respondent No.4 was disputed by the petitioner and, as such, the disputed question could not have been adjudicated by the Respondent No.3 in exercise powers conferred under Section 6 H (1) of the Act. He further submits that in any circumstances the post award wages are the matters covered by Section 6 H (2) of the U.P. Act and not under Section 6 H (1) of the U.P. Act. He, therefore, submits that the impugned order deserves to be set aide. In support of his submission learned counsel for the petitioner has relied upon the judgments of this Court in the case of British India Corporation Vs. State of U.P. and others Writ Petition No. 36657 of 2011 decided on 12th March, 2013, British India Corporation Ltd. Vs. Additional Labour Commissioner and others Writ Petition C No. 4098 of 2007 decided on 5th April 2013 and Hindustan Aeronautics Limited Vs. State of U.P. and others 2013 (139) FLR 323 and British India Corporation Ltd Vs. Union of India and others 2011 (2) AWC 1316, paragraph Nos. 9,12 and 18.

5. Sri S.N. Dubey, learned counsel for Respondent No.4 submits that the impugned order under Section 6-H (1) of the U.P. Act has been passed well in accordance with law. He submits that there is no dispute with regard to making of the reference but the dispute is only with regard to the payment of difference of salary pursuant to the award dated 16th March, 1988 which has attained finality. He refers to the counter affidavit field on behalf of Respondent No.4 and submits that the Respondent No.3 while entertaining the application under Section 6-H (1) of the U.P. Act faced some difficulty and took steps to send the matter to the authority under the Central Act but the authority under the Central Act has returned the matter to the Respondent No.3 and consequently the Respondent No.3 has decided the application of the Respondent No.4 under Section 6-H (1) of the U.P. Act. He, therefore, submits that the impugned order under Section 6-H (1) of the U.P. Act has been passed well in accordance with law and there is no lack of jurisdiction of the Respondent No.3 to pass the impugned order.

6. I have carefully considered the submissions of learned counsel for the parties and perused the records of the writ petitions.

7. Briefly stated the facts of the present case are that the petitioner is undisputedly a company of the Government of India incorporated under a statute and the Central Government has deep and pervasive control over its affairs. The appropriate government for the purpsoes of industrial dispute is the Central Government and the provisions of the Industrial Dispute Act, 1947 (hereinafter referred to as the 'Central Act') are applicable on the petitioner in matters of Industrial Dispute.

The petitioner was initially registered as a public limited company in the year 1920. It had two woollen mills directly run by it namely Cawnpur Woolen Mills and New Egertan Woollen Mills, Dhariwal. It has substantial shares in various other companies like M/s Algin Mills Company Ltd, Brushware Ltd, Canpur Textile Ltd, Canpur Sugar Works Ltd, Champaran Sugar Company Ltd and Saran Engineering Company etc. The petitioner company was compulsorily acquired under The British India Corporation (Acquisition of shares) Ordinance 1981 (Act No. 5 of 1981) promulgated on 11th June, 1981. By acquisition, entire shares of the company stood transferred to the Central Government. Subsequently the Act was passed by the Parliament providing for the acquisition of shares of British India Corporation Ltd with a view to secure the proper manament of the affairs of the company and continuity and development of production of goods which are vital to the needs of the country and the matters connected thre with or incidental there to. The Central Government took over the company. The industrial company was carried on by and under the authority of the central government.

8. The question of jurisdiction under the U.P. Act came for consideration before this Court in the matter of the petitioners itself in Writ Petition No. 5348 of 2002 decided on 18th November, 2010 and reported in 2011 (2) AWC 1316. In this writ petition the labour court award dated 7.6.2001 as publised on 22.8.2001 passed in adjudication Case No. 230 of 1996 was challenged by the petitioner. A question was raised as to the jurisdiction of the authorities under the U.P. Act. This court considered in detail all the relevant aspects and held the reference itself to be void and the proceedings to be without jurisdiction as under:

"9. In Heavy Engineering Mazdoor Union Vs. State of Bihar [AIR 1970 SC 82] an industrial dispute was referred to the Tribunal by the Bihar Government in relation to Heavy Engineering Corporation Ltd., Ranchi, when it was challenged on the ground that being a Central Government Undertaking, it was the Central Government only which could pass the reference order. The Apex Court relying on common law interpretation held that the mere fact that the entire share capital was contributed by the Central Government or that all shares are held by the President would not make any difference because the company and the share holders being distinct identities, this fact would not make it an agent of either the President or the Central Government. This view was followed with minor aberrations in Hindustan Aeronautics Ltd. Vs. Workmen [(1975) 4 SCC 679]; Rashtriya Mill Mazdoor Sangh Vs. Model Mills [1984 Supp. SCC 443]; Worker Union Vs. Food Corporation of India [(1985) 2 SCC 294] etc. In all these cases the construction adopted was "with reference to its functional efficacy" (using the words of the Apex Court itself), then came the decision in Air India Statutory Corporation Vs. United Labour Union [(1997) 9 SCC 377]. In this case, the Central Government abolished contract labour system in certain perennial work being carried out by the Corporation under the Contract Labour (Regulation and Abolition) Act 1970. The foremost issue which came up before the court was the same, i.e. the concept of an industry being carried on by or under the authority of the Central Government vis-à-vis the Industrial Disputes Act. Considering the changing scenario in the liberalized free economy and the development of the law of Article 14 of the Constitution, it interpreted the word ''control' and inter alia, held that in the case of Central Government Companies the Central Government would be appropriate Government since they were State or its agent where there was deep and pervasive control of the Central Government. Conflicting decisions of two three judges led to a reference to a Constitutional Bench and a five judge bench rendered its decision in the case of Steel Authority of India Ltd. Vs. National Union Waterfront Workers [(2001) 7 SCC 1]. After considering all the decisions, it prospectively overruled the decision in Air India Statutory Corporation (Supra), partly criticized the decision in Heavy Engineering Mazdoor Union (Supra) and affirmed the decision in Food Corporation of India Workers Union (Supra) and held that the test to determine the authority of the Central Government is to find out whether it is being run by virtue of conferment of power or permission by the Central Government and not whether the undertaking is a ''State' within the meaning of Article 12 of the Constitution. It further held that where the authority is conferred by a statute under which it is created, no further inquiry is required but in other cases it would depend on the facts of each case.

12. The adjudication was still pending before the Labour Court when Air India Statutory Corporation case was decided on 6.12.1996. Based on this decision, the petitioner moved the application dated 26.2.1998 to amend the written statement to incorporate the objection in view of the said decision and disclosing that it was a fully owned and controlled Central Government company in view of the provisions of the Act. There was no substantial denial by the workmen but the Labour Court rejected the application vide order dated 9.2.1998 without considering the import of the aforesaid judgement of the Apex Court. However, again an additional written statement, incorporating the same objection was filed on 11.8.1998 but the Labour Court, again, without considering the import of the said judgement, has rejected it while delivering the award. In substance the law on the date when the award was rendered was that wherein a Government company incorporated under a statute, the Central Government had deep and pervasive control over its affairs, the appropriate Government would be the Central Government and reference by the State Government would be bad in law. It was neither denied before the Labour Court nor before this Court, rather, in the pleadings it is admitted that the Central Government had deep and pervasive control over the company and therefore, the reference under section 4-K of the U.P. Industrial Disputes Act was vitiated being beyond the jurisdiction of the State Government and the Labour Court erred in holding otherwise.

16. It is obvious that under the authority of the Act, the Central Government took over the company to ensure "proper management of the affairs of the Company and the continuity and development of the production of goods" and for "an effective control over the affairs of the Company". Thus, there can be no doubt that the industry is being carried on by and under the authority of the Central Government, therefore, even according to the ratio of the Steel Authority of India case, the 'appropriate Government' in the case of the petitioner would be the Central Government. It would be irrelevant even if some shares were held by the State Bank of India and other statutory authorities because even in their cases the appropriate Government would be the Central Government and there is nothing on record to show that any of the statutory authorities are running the industry.

17. Let us now consider the alternative argument.

18. The notification under section 39 of the Industrial Disputes Act issued by the Central Government empowering the State authorities to refer the dispute even in the case of Central Government Company, would not be applicable in the present case. Firstly, the reference was made in July, 1996 when the said notification was not in existence. Secondly, under the notification, the State authorities could refer an industrial dispute under section 10 of the Industrial Disputes Act, 1947 to the Labour Court or Tribunal constituted by the Central Government, which is not the case in the present facts. A Learned Single Judge of this Court was examining this very issue in the case of National Textile Corporation Ltd. U.P. Kanpur and others Vs. State of U.P. and others [writ petition no.45538 of 2003] decided on 14.9.2004 and held that even while exercising the delegated power under section 39 of the Industrial Dispute Act, the reference could have been made in accordance with section 17-A thereof to the Central Authority and any reference under section 4-K of the U.P. Industrial Disputes Act would be void. Accordingly, even this argument of the learned counsel for the respondent cannot be accepted."

(Emphasis supported by me)

9. In civil Misc. Writ Petition No. 3667 of 2011 the British India Corporation Vs. State of U.P. and others decided on 12th March, 2013 this Court quashed the labour court award dated 7th October, 2010 holding that the appropriate government is the Central government in the matter of the petitioners. In view of the above discussions it is clear that from the very beginning the appropriate government with respect of the petitioner company was the Central government. In the petitioner's case itself reported in 2011 (2) 1316 in paragraph No. 18 as quoted above, this Court noted the fact that the notification under Section 39 of the Industrial Dispute Act issued by the Central Government empowering the state authority to refer the dispute even in the case of central government company would not be applicable in the present case for the reason that firstly the reference was made in July, 1996 when the said notification was not in existence and secondly under the notification the state authorities could refer an industrial dispute under Section 10 of the Central Act to the Labour Court or Tribunal constituted by the Central government. In the present set of facts the basis of the impugned order under Section 6 H(1) of the U.P. Act is the award dated 16th March, 1988 which was passed by the Labour Court under the U.P. Act. No reference was made under Section 10 of the Industrial Dispute Act, 1947 to the Labour Court or Tribunal constituted by the Central Government. This Court in the judgment noted in para 8 above held the reference to be void and quashed the award.

10. In both the present writ petitioners the award is not under challenge but the fact remains that the source of claim of the Respondent workman is the award dated 16th Marcy, 1988 which was passed upon a reference by the state government under the U.P. Act and not by the Central government which was the appropriate government under the Central Act. Under the circumstances the respondent No.3 cannot be said to have jurisdiction in respect of industrial dispute or matter incidental thereto, relating to the petitioners. Thus both the impugned orders passed by the Deputy Labour Court Commissioner Respondent No.3 are held to be without jurisdiction.

11. Learned counsel for the Respondent No.3 has heavily relied upon a communication of the Additional Labour Commissioner, U.P. Kanpur Zone, Kanpur dated 11th August, 2011 in which it is mentioned that the files in matter of petitioner was sent to the Regional Labour Commissioner (Central) but the same were returned.

12. However, this letter does not contain any reference to the applications of the respondent workman under Section 6 H (1) of the U.P. Act on which the impugned orders were passed. That apart, jurisdiction could not have been assumed by the Respondent No.3/Deputy Labour Commissioner U.P. Kanpur under the pretext of returning of the file allegedly by some Regional Labour Commissioner (Central). The jurisdiction can be exercised by an authority only if it is conferred under the relevant Act.

13. It is noteworthy that after the award dated 16th March, 1988 was passed, the petitioners have undisputedly sent a letter dated 15th June, 1988 through registered post to the Respondent-workman which is reproduced below:

"In compliance with the award given by Hon'ble Mr. Justice A.S. Srivastava, Presiding Officer, Industrial Tribunal-III, Kanpur, in the above cases published on 31st May, 1988, you are hereby called upon to report for duty to the undrsigned at Sutherland House 16/8, Civil Lines, Kanpur, immediately on receipt of this letter and in any case not later than 30th June, 1988.

In case you fail to do so, it would be presumed that you are not interested in our employment."

14. Undisputedly the said letter was received by the respondent-workmen but he did not join the duty within the stipulated period. He filed a writ petition No. 19760 of 1988 through the union for quashing of the award. It appears that when the workman could not get any order in his favour in the said writ petition then off late he sent a letter dated 22nd January, 1989 to the petitioner through the union which was replied by the petitioners vide their letter dated 19th February, 1989 intimating that in compliance to the award the Respondent workman was called upon by registered letter dated 15th June, 1988 to join not later than 30th June, 1988 and in case he fails to report for duty latest by 30th January, 1988 it would be presumed that he is not interested in the employment. Receipt of this letter is undisputed. Thus it can not be said that the petitioners have not complied with the award dated 16th March, 1988. If the respondent-workman deliberately failed to join within the stipulated period in compliance to the award, as offered by the petitioner then the petitioner cannot be said to be at fault.

15. At this stage learned counsel for the respondent-workman submitted that the said registered letter was belatedly handed over to the respondent workman by the union. I find that  the submission has no legs to stand. The writ petition No. 19760 of 1988 was filed in the month of October, 1988 by the petitioner and other workmen through the union. However, there is no whisper in the writ petition that the said letter was received belatedly by the petitioner through the union.

16. It shall not be out of place to mention that after the award was passed on 16th March, 1988, the respondent workman firstly did not join deliberately rather filed writ petition No. 19760 of 1988 praying to quash the said award. Subsequently he withdrawn himself from that writ petition by moving an application in March, 2005 i.e. after about 17 years and thereafter an interim order dated 23rd March, 2006 was passed in Writ Petition No. 69980 of 2005 by which the petitioners were directed to reinstate the Respondent No.3 in service within one month.

17. The respondent workman was allowed to join services under the interim order of this Court dated 23rd March, 2006 passed in Writ Petition No. 69980 of 2005 which was filed by the present petitioners to challenge the order dated16.9.2005 under Section 6 H (1) of the U.P. Act directing the petitioners to pay to the respondent-workman a sum of Rs. 6,28,988/- towards salary and Rs. 37,739/- towards interest, total Rs. 6,67,727/- in satisfaction of the award dated 16th March, 1988 passed in Adjudication Case No. 276 of 1980 and 41/1981. However this writ petition was dismissed in default and has not been restored as yet. After getting this amount the Respondent No.3 workman moved second application under Section 6 H(1) of the U.P. Act before the Additional Commissioner, U.P. Kanpur claiming for certain dues for the period 1.4.2009 to 31.1.2010 and the said authority after noticing the fact that the Respondent No.3 workman has joined pursuant to the interim order dated 23rd March, 2006 passed in Writ Petition No. 69680 of 2005, further allowed the claim of Rs. 74,484/- to the Respondent No.3 workman. Thereafter the Respondent No.3-workman filed the third application before the Deputy Commissioner U.P. Kanpur Zone Kanpur under Section 6 H (1) of the U.P. Act for payment of some amount claiming the same to be admissible to him pursuant to the award dated 16th March, 1988. The application was again allowed by the Deputy Labour Commissioner, U.P. Kanpur Zone, Kanpur by the impugned order dated 3rd December, 2012 directing the petitioners to pay to the Respondent workman a sum of Rs. 1,68,186 for the period 1.6.2010 to 31.5.2012.

18. The petitioners seriously disputed the claim of the Respondent workman under Section 6H (1) of the U.P. Act pursuant to the award dated 16th March, 1988. That apart the claim made by the Respondent workman was for the post award salary which was seriously disputed by the petitioners. Therefore, in any circumstances the Deputy Labour Commissioner, U.P., Kanpur Zone Kanpur could not have exercised his jurisdiction under Section 6 H (1) of the U.P. Act for the alleged compliance of the award dated 16th March, 1988. The respondent workman could have raised industrial dispute for the alleged claimed amount which is stated to be difference of salary.

19. The scope of Section 6 H (1) of the U.P. Act was considered by this Court in the case of petitioners itself in Writ Petition No. 4098 of 2007 M/s The British India Corporation Vs. Additional Labour Commissioner and others decided on 5th April, 2013 in which this Court held as under:

"The facts of the case are that the Labour Court had made an award on 5.11.1998 in favour of the workman granting him certain promotional benefits and pay scale. The matter was challenged by the petitioner-Company by way of of Writ Petition No.36367 of 1999 in which this Court passed a judgment on 19.11.2004.

By this judgment the Court held that the workman would be paid for the work, which had been taken from him but held conclusively that the workman was not entitled to the promotional designation as promotion. It is well settled is a managerial function and it is not open to the Labour Court to grant promotional benefits to a workman.

Consequently, the petitioner company paid to the workman, the benefits, which flowed from the award which had been confirmed by the High Court.

The workman, however, moved an application under Section 6H(1) praying for benefits beyond the date of the award i.e. he sought benefits post the passing of the award.

On a plain reading of the provisions of Section 6H (1) of the Act such a prayer under Section 6H(1) of the Act could not have been entertained by the Labour Court because it is not the scope of Section 6H(1) of the Act. The Section 6H(1) of the Act is confined to computation of amounts mathematically, which have crystallized or stand adjudicated in favour of the workman. It cannot extend the benefits to the workman beyond and post the date of the award especially when it is not supported by any evidence and the work done after the date of the award in a recent judgment of this Court in the case of Jai Prakash Ahirwar Vs. State of U.P. & others reported in 2012 (4) AWC 4341 also the Court has taken the same view and discussed the scope of Section 6H(1) of the Act relying on Hon'ble Supreme Court decisions that post award wages could not be recovered under Section 6H(1) of the Act more particularly when the amount claimed is determined by the employer.

The Court has relied on the decision of the Hon'ble Apex Court in the case of Kays Construction Co. Pvt. Ltd. AIR 1965 SC 1488 wherein it was held that back wages under the award would be termed as money due but post award wages would not qualify as money due under the award.

In order to avail the benefit of Section 6H(1) of the Act the wages must have been determined officially that is to say the process of adjudication should be over, the amount should be crystallized and at the most only the mathematical calculation may be made that is to say in other words that there should be an existing legal right. The matter should not be in the realm of doubt or dispute as is in this case.

Having heard learned Counsels on both sides and having perused the material on record, I am, therefore, of the view that the order passed by the Deputy Commissioner is not justified in the facts and circumstances of the case. The amount has been wrongly awarded, there is no justification to do so. Hence, the order impugned in this petition is set aside."

(Emphasis supplied by me)

20. In the case of Hindustan Aeronautics Limited Vs. State of U.P. and others this court considered the scope of section 6H (1) of the U.P. Act and held as under:

"4. Having heard the learned counsel for the parties, the Court is of the opinion, that the disputed questions of fact cannot be adjudicated in execution proceedings under Section 6-H(1) of the Act coupled with the fact that post award wages also cannot be calculated in proceedings under Section 6-H(1) of the Act. In the instant case the petitioner had categorically stated before the authority that the amount sought to be recovered by the heirs of the workman was wholly arbitrary and not in accordance with the wage rate, etc., that is required to be paid to the workman. The Court finds that the Additional Labour Commissioner has not adverted to the objection raised by the petitioner and has mechanically issued an order accepting the contention of the heirs of the workman without assigning any reason.

Consequently, the impugned order passed by the Additional Labour Commissioner cannot be sustained and is quashed. The writ petition is allowed. The amount already deposited by the petitioner pursuant to the interim order can be withdrawn by the heirs of the workman, if it has not already been withdrawn. For the remaining amount, if the respondents so desire, may file an appropriate application under Section 6-H(2) of the Act before the Labour Court for appropriate adjudication."

(Emphasis supplied by me)

21. Thus, in any view of the matter even if it is assumed for a moment that the Deputy Labour Commissioner had jurisdiction under the U.P. Act in respect of the petitioners yet the impugned orders could not have been passed under Section 6 H (1) of the U.P. Act.

22. In view of the above discussions both the writ petitions succeed and are hereby allowed. The impugned orders dated 3rd December, 2012 and 24th January 2012 are hereby set aside. Consequently the recovery proceedings also stands quashed.

In result both the writ petitions succeed and are hereby allowed with costs.

Order Date :- 17.4.2015

MT**