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Judgment
D.K. Seth, J.—U.P. State Sugar Corporation Limited (hereinafter called as the ''Corporation'') has challenged the award dated 24.6.92, being Annexure 3 to the writ petition, by which the claim of Respondent No. 1 was allowed.
The facts giving rise to the present dispute are that Respondent No. 1 '' who is an A.B.M.S. Doctor appointed in the scheduled undertaking since being acquired by the Corporation under the U.P. Sugar Undertaking Acquisition Act, 1971 (hereinafter called as the ''Acquisition Act''). The Respondent No. 1 had filed an application before the Labour Court u/s 33C(2) of the U.P. Industrial Dispute Act (hereinafter called as the ''Act'') claiming that he is entitled to the amount due as shown in the Annexure D to the said application; Respondent No. 1 alleged that he was appointed in the year 1955 as Doctor in M/s. Panni Jee Sugar and General Mills Company; by reason of his option exercised pursuant to Government Order No. 10397 (HI)/XXVI-C-83 (Hl)/70, dated 27.11.70 he is entitled to the wages as paid to the Medical Officer in P.M.S. II and not those prescribed by the Wage Board. The Government of U.P. has allowed the selection grade scale to P.M.H.S. Officers with effect from 1.7.82 who had completed 16 years service before the said date or on any subsequent dates thereafter. Since Respondent No. 1 had also complete 16 years continuous service, therefore, he is also entitled to get the selection grade w.e.f. 1.7.82. The Petitioner had rejected the claim of Respondent No. 1 by an order dated 12.6.89 though Respondent No. 1 was entitled to the difference of pay as calculated in Annexure D to the said application and, therefore, he had prayed for computation of the said amount due, u/s 33C(2) of the Act before the Labour Court. The Petitioner, on the other hand, contested the said case on various grounds by filing written statement. It was contended that Respondent No. 1 was not a workman u/s 2 (b) of the Act and that he is not entitled to the pay scale/and or terms and conditions of service applicable to P.M.S. Grade II Officers. The Petitioner came into existence on 28.10.84 by reason of acquisition of original undertaking of M/s. Panni Jee Sugar and General Mills Company and that the liability prior to the date of taking over was that of the erstwhile owner. Respondent No. 1''s entitlement to the selection grade of pay is disputed. The State Government did not envisage all service conditions of P.M.S. Grade II would be applicable to the Medical Officers of Sugar Factories.
Learned Counsel for the Petitioner contends that by reason of Section 3 of the Acquisition Act, the undertaking has been vested in the Corporation and by reason of Section 16 of the Acquisition Act, Respondent No. 1 was eligible to continue on the conditions laid down u/s 16 of the said Act. Any claim with regard to the period prior to the date of acquisition or the appointed day is to be recovered from the erstwhile owner in terms of Section 7 (6)(c) of the Acquisition Act or through the Prescribed Authority as the case may be. It is further contended that by reason of Section 16 of the Acquisition Act, Respondent No. 1 is entitled to continue on the same terms and conditions and with the same rights and privileges as he would have held on the appointed day if the undertaking was not transferred to and vested in the Corporation until his services are terminated or until his termination or other terms and conditions of services are revised or altered by the Corporation or otherwise. The Respondent''s remuneration having been revised is entitled to continue on the revised scale which he has accepted and has not questioned until filing of the claim Petitioner on 2.4.91. After having accepted the revised scale, he is not entitled to go back at his original scale and claim other benefits.
Learned Counsel appearing for Respondent No. 1 on the other hand contends that since Respondent No. 1 had opted for P.M.S. Grade II scale, therefore, he is eligible to all benefits of the said scale and accordingly his scale is to be revised on the basis thereof and by reason of the said situation, he is also entitled to the selection grades scale which was not given to him.
Though various other points have been raised to the extent on the question of merits by both the learned Counsel for the parties, in my opinion, it is not necessary to go into those questions for the reason following.
A short point that falls for decision is as to whether the relief sought for is a computation flowing from an existing right or it amounts to determination of the entitlement, as contended by the Petitioners. M/s. Panni Jee Sugar and General Mills Company was a Company. The Government by its order dated 27.4.61 (Annexure CA 4 to the counter-affidavit of Respondent No. 1) enforced recommendation of the 1st Wage Board Award for Sugar industries. The Medical Staff were defined as "Medical and Educational Staff. By reason of inclusion of the Medical Staff in the recommendation of the Wage Board Award (Annexure CA 4 to the counter-affidavit of Respondent No. 1), the Respondent No. 1 was covered by the recommendation of the Wage Board Award which is applicable to a workman. The question as to whether the Respondent No. 1 is a workman or not is no more open for determination. The Labour Court had relied on the statement of the witnesses, namely, the workman witness No. 1 and the employer witness No. 1 as recorded in Annexure CA 2 and 3 to the counter-affidavit filed by Respondent No. 1 and found that Respondent No. 1 was not given any supervisory or administrative power. In the case of Dr. P.N. Gulati v. Presiding Officer, Labour Court, Gorakhpur 1977 Lab IC 1088, a Division Bench of this Court had held that "Doctor employed by industry rendering medical aid to employees is a workman". Thus, the question as to whether Respondent No. 1 is a workman is no more a question to be determined.
In the recommendation of the Wage Board (Annexure CA 4 to the counter-affidavit of Respondent No. 1) P.M.S., Grade II was allowed to the Medical Officer on the basis of the Government Order dated 27.4.61. In terms of order dated 22.3.84 (Annexure CA 9 to the counter-affidavit of Respondent No. 1), a person completing 16 years of sendee in P.M.S., Grade II is eligible for selection grade scale. The entitlement of the Respondent No. 1 finds affirmation from the recommendations dated 13.6.85 (Annexure CA 6) and 3.1.89 (Annexure CA 7) which were made by the General Manager of the Unit where Respondent No. 1 was working. The Respondent No. 1 had opted for P.M.S., Grade II. His option was duly accepted. He was granted P.M.S., Grade II which is apparent from his service book filed as Annexure B along with the application u/s 33C (2) of the Act. By an order dated 22.3.84 (Annexure CA 9 to the counter-affidavit of Respondent No. 1) selection grade scale was allowed to P.M.H.S. Officers having completed 16 years of service on or before 1.7.82 with effect from 1.7.82 or on any subsequent date thereafter as the case may be. Admittedly, Respondent No. 1 was in P.M.S. Grade II and he had had completed more than 16 years of service before 1.7.82. Whether he is entitled to the selection grade or not is only a matter of record. The finding as to whether Respondent No. 1 has completed 16 years of service by 1.7.82 and whether he was in P.M.S., Grade II is not a question of determination since these facts are admitted. Even while making computation in exercise of power u/s 33C (2) of the Act, incidently the Labour Court has jurisdiction to look into, on the basis of the materials placed before him, whether the right exists and the claim of computation flows from an existing right or not. In the present case, it is not a question of determination of entitlement but only to enquire as to whether the right is an existing right and the computation flows from such existing right. The said question, as it appears from the fact, no doubt shows that simply on the basis of the service record of Respondent, the same can be decided without any further evidence to be led by the parties. The Petitioner has not disputed that part of the records.
The undertaking was acquired under the said Act on 28.10.84. The Government Order dated 22.3.84 prescribing grant of selection grade was issued long before 28.10.84. Therefore, on the date of acquisition, the right of the Respondent stood accrued and came into existence. Now the learned Counsel for the Petitioner contends that because of the provisions contained in the said Acquisition Act, Respondent No. 1 cannot claim the said right as an existing right because of the different provisions of the said Acquisition Act which has brought about material changes in relation between employee and employer between Respondent and Petitioner. According to him, since the right had accrued prior to the date of acquisition, the same can be realised only by an application before the prescribed authority appointed u/s 10 or of the Acquisition Act in terms of Section 7 (6)(c) of the said Act. Therefore, the right claimed by Respondent No. 1 is not an existing right but an entitlement which requires determination. He further contends that in view of Section 16 of the Acquisition Act, Respondent No. 1 is entitled to continue on the same pay which he was receiving until altered by the Corporation. Therefore, the amount which Respondent No. 1 had been receiving when the undertaking was acquired would be the amount with which he is entitled to continue with the Corporation. Since thereafter, the Corporation has altered the scale and pay, therefore, in terms of Section 16 of the Acquisition Act, such altered scale and pay is the only entitlement which Respondent No. 1 can get. Whether he is entitled to get anything else is not an existing right but an entitlement which requires determination. On this ground he challenges the said validity of the award as without jurisdiction.
In order to appreciate the arguments of the learned Counsel for the Petitioner, it is necessary to refer to the various provisions of the said Acquisition Act which I shall deal shortly hereafter. So far as the question that the claim can be raised by the Respondent, as alleged by the learned Counsel for the Petitioner, only u/s 7 (6)(c) of the Acquisition Act by lodging claim before the prescribed authority is concerned, It appears that the said submission is devoid of any merit. In as much as Section 7 (1)(c) of the Acquisition Act requires deposit of compensation payable after adjusting the amount which are payable in terms of Clause (c) to other persons. The deduction which are permissible from such compensation are specified in Sub-section (6)(c) of Section 7 of the said Acquisition Act which provides that any amount of wages, retaining allowance, bonus, provident fund or other payment due to persons employed as workmen (within the meaning of the U.P. Industrial Disputes Act, 1947) in connection with the scheduled undertaking immediately before the appointed day. But this clause will not be available to persons who are covered u/s 16 of the said Acquisition Act. Section 16 of the Acquisition Act provides that all persons employed in the scheduled undertaking except the Director in whom the ownership, management or control was vested from the appointed day would become employee of the Corporation and hold office or service therein with the same tenure, remuneration, terms and conditions, rights and privileges as to pension, gratuity and other matters as he would have held on the appointed day if the undertaking had not been transferred to and vested in the Corporation, and would continue to do so until his employment is terminated or his remuneration or other terms and conditions of services are revised or altered either in pursuance of any law or by any provisions by which he governed.
Section 16 (1) of the Acquisition Act provides as above is in the following terms:
Transfer of employees.--(1) Save as otherwise provided in this section, every person (other than a director of a company in whom the ownership, management or control of the scheduled undertaking was vested immediately before the appointed day, or of a subsidiary com; any of such company or a relative, as defined in Section 6 of the Companies Act, 1956 (Act I of 1956), of such director or of proprietor or partner or lessee of the undertaking who was employed exclusively in connection with the schedule undertaking immediately before the appointed day shall, on and from that day become an employee of the Corporation and shall hold his office or service therein by the same tenure, at the same remuneration, and upon the same terms and conditions, and with same rights and privileges as to pension, gratuity and other matters as he would have held the same on the appointed day if the undertaking had not been transferred to and vested in the Corporation, and shall continue to do so until his employment in the Corporation is terminated or until his remuneration or other terms and conditions of service are revised or altered by the Corporation under or in pursuance of any law or in accordance with any provision which for the time being governs his service.
The expression that as "if the Undertaking had not been transferred" clearly lays down that even if any amount is not paid to Respondent No. 1 or is not correctly fixed or the selection grade was not granted to him, he could have claimed if the undertaking was not transferred. Since impact of the transfer in relation to an employee is to such an effect, therefore, by reason of the phrase as if the undertaking had not been transferred to'' by a deeming clause, the same rights which were available to the workman against the erstwhile employer can very well be claimed and enforced against the Corporation. Such workman is, therefore, entitled to continue with the same right. Since Respondent No. 1 was eligible to the selection grade scale before the acquisition, by reason of his entitlement, it should be deemed that he is continuing with such scale. All revisions that may be made has to be effected in the same manner.
The liability of the Corporation is governed by the provisions of the Acquisition Act. The said Acquisition Act has made a distinction between claims arising before the appointed day and after the appointed day. The liability accrued on or after the appointed day is that of the Corporation. The liability accrued prior to the appointed day is not the liability of the Corporation. There are various kinds of liabilities. We are concerned with the liability with regard to employee''s entitlement.
Section 8 (5) of the said Acquisition Act provides for recovery of the dues of an employee accrued prior to the appointed day. The said section provides that "any person who was employed exclusively in connection with the scheduled undertaking immediately before the appointed day, whether he does or does not become an employee of the Corporation u/s 16, or ceases to be in such employment, or any trade union of which such person was member, may prefer to the prescribed authority any claim relating to any salary, wages, retaining allowance, leave salary, bonus, pension, provident fund, gratuity or other payment due to him, or the proportionate amount thereof in respect of any service rendered by him in connection with the undertaking before the said day."
In view of Sub-section (5), Section 8 of the Acquisition Act the entitlement of an employee continuing u/s 16 of the said Act in respect of the period prior to the appointed day or after the appointed day are divided into two parts. Any claim with regard to salary, wages, etc., for the period prior to appointed day, even by a person continuing as an employee u/s 16 of the Acquisition Act, is to be preferred to the prescribed authority. So far as the rest of the claim after the appointed day, it is the responsibility of the Corporation.
Section 16 of the Acquisition Act makes a distinction with regard to salary and with regard to privileges such as pension, gratuity and other matters. So far as salary is concerned, the same is payable only if the same relates to a period after the appointed day by the Corporation. But so far as the pension, gratuity and other matters are concerned, it would become due only after retirement normally after the appointed day in case the person confirms to be employed u/s 16. naturally the same would be the liability after the appointed day and as such it is a liability of the Corporation. However, we are not concerned with the pension, gratuity and other matters in the present case. The claims that have been made are in respect of salary and difference of pay. The same can, therefore, be distinctly divided into two parts--those which have accrued prior to the appointed day and after the appointed day respectively. Therefore, if it flows from an existing right, the same is recoverable from the Corporation and as such, the computation is to be made on the basis of the acquisition of the right from a date after the appointed day. Proviso to Section 16 of the Acquisition Act is to be read along with the proviso of Sections 7 (6)(c) and 8 (5) of the said Acquisition Act. The said provisions are to be reconciled. Admittedly, the prescribed authority has no jurisdiction to decide the claim in respect of the period after the appointed day. Similarly, in view of Sub-section (5) of Section 8 of the Acquisition Act, the claim with respect to the period prior to the appointed day can only be lodged with the prescribed authority. In that view of the matter, the award of the Labour Court cannot be sustained for the whole of the claim of the Respondent.
In that view of the matter, the award is set aside and the writ petition is allowed to the above extent. The Labour Court shall proceed with the computation afresh in the light of the observation made above in respect of the existing rights of the Respondent No. 1 as held above. I, however, make no observation with regard to the claim of Respondent No. 1 in respect of the period prior to the appointed day. This Court hopes and trusts that the Labour Court would complete its enquiry and the computation as early as possible preferably within a period of six months from the date of production of certified copy of this order before him by giving proper opportunity to both the parties.