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2020 Supreme(All) 1101
IN THE HIGH COURT OF ALLAHABAD
J.J. Munir, J.
Duncans Industries Ltd. Fertiliser Division, Panki – Petitioner
Versus
State of U.P. and Others – Respondents
WRIT - C No. - 30660 of 2000
Decided On : 10-08-2020
Advocate Appeared:
For the Petitioner: B.K.Mukerjee, P.K.Mukerjee, S. Catterjee
For the Respondent: S.M.A.Kazmi, D. Chauhan, Ms. Bushra Maryam, Pankaj Srivastava, Rakesh Kumar, Rohit Shukla, S.C. Vikram, S.M.A.Kazmi, Vikram D. Chauhan
Point of Law: principles are not open to question in the field of service law, where employment is either under the State or a State Instrumentality or any other Employer, but regulated by statutory rules. In the matter of enforcement of rights of workmen under the labour laws also, these principles would be attracted wherever the Employer, though an industry, is either the State or a State Instrumentality or otherwise governed in its relationship with the workmen by service rules that are statutory or partake of statutory flavour
Headnote:
Sick Industrial Companies (Special Provisions) Act, 1985 - To quash the award of the Presiding Officer, Industrial Tribunal (3), U.P., passed in Adjudication Case between the Employers and their twenty-seven workmen, twenty-four of whom are arrayed here as respondent nos. 6 to 29. The respondents-workmen are hereinafter referred to as 'the workmen'. Four of the workmen are dead and have been substituted by their heirs and legal representatives vide an order of this Court - The future reference to workmen, shall include those legal representatives. The award passed by the Labour Court, last mentioned, shall hereinafter be called ‘the impugned award’
Finding of the Court:
It is not the Employers’ case anywhere that they have retrenched any of their casual hands or the workmen. The Employers have retained the workmen, may be after the lay off, during which they went out of production and had a change of Management, post settlement of a Rehabilitation Scheme by the BIFR. The substance of the matter is that requirement of the Employers is still there and the only disassociation of the workmen, as also their other workmen is during the period of lay off. These workmen have been, thus, part of the Employers’ establishment since the decade of 1980s. It cannot, therefore, be gainsaid that the workmen were engaged as casual hands to take care of exigencies of work. They were retained to do work, that is perennial in nature, and have worked there entire lives with the Employers. After revival of production, according to the Employers, their association continues except some workmen, whose names are mentioned in the supplementary affidavit, having superannuated during this period -
Result: Petition dismissed
JUDGMENT :
1. The petitioners are Employers disillusioned with an award of the Presiding Officer, Industrial Tribunal (3), U.P., Kanpur passed in an industrial dispute between them and their workmen. The original petitioners were a certain Duncans Industries Limited (formerly known as Chand Chhap Fertilizer and Chemicals Limited, Fertilizer Division, Panki, Kanpur). It appears that due to losses suffered in business by Duncans they became sick and were declared a sick industrial company by the Board of Industrial and Financial Reconstruction (for short, 'the BIFR'), under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 vide order dated 21.07.2007. The State Bank of India were appointed the operating agency to explore avenues for revival of the sick industrial company. In proceedings before the BIFR, a certain M/s. Kanpur Fertilizer and Cement Limited proffered to work in joint venture for revival of the sick industrial company. The operating agency acting on the said offer, drew up and presented a draft Rehabilitation Scheme on January the 16th, 2012 to the BIFR. This scheme was sanctioned by the BIFR in terms that the fertilizer undertaking of Duncans would be transferred to and vest in M/s. Kanpur Fertilizers and Cement Limited, as a going concern. The sanctioned Rehabilitation Scheme also transferred all liabilities of Duncans to M/s. Kanpur Fertilizers and Cement Limited, including pending legal proceedings. It is in this manner that the petitioners’ name has now been changed to M/s. Kanpur Fertilizers and Cement Limited, Panki, Kanpur.
2. M/s. Kanpur Fertilizers and Cement Limited sought impleadment in place of Duncans through Civil Misc. Application No. 199844 of 2012. This application was allowed by an order of the Court dated 22.08.2012. The petitioners, originally called Duncans Industries Limited (Fertilizer Division), Panki, Kanpur, have since been virtually substituted as M/s. Kanpur Fertilizers and Cement Limited, Panki, Kanpur. The petitioners have been impleaded under their new name and style, rather incongruously as petitioner No. 1/1. The petitioners ought to have been impleaded as M/s. Kanpur Fertilizers and Cement Limited, with their particulars, after striking out the name of Duncans from the array. Nevertheless, that need not detain this Court any further, except for a remark that M/s. Kanpur Fertilizers and Cement Limited, Kanpur, Panki are and shall be the sole petitioner of this writ petition in place of Duncans.
3. The Employers have moved this Court praying for a writ, order or direction in the nature of certiorari to quash the award of the Presiding Officer, Industrial Tribunal (3), U.P., Kanpur (Published on 10.05.2000) passed in Adjudication Case No. 162 of 1989 between the Employers and their twenty-seven workmen, twenty-four of whom are arrayed here as respondent nos. 6 to 29. The respondents-workmen are hereinafter referred to as 'the workmen'. Four of the workmen are dead and have been substituted by their heirs and legal representatives vide an order of this Court dated 10.09.2018. The future reference to workmen, shall include those legal representatives. The award passed by the Labour Court, last mentioned, shall hereinafter be called ‘the impugned award’.
4. It must be recorded here that in the writ petition, challenge was laid to the vires of the provisions of Section 4-E (2) and (3) of the Uttar Pradesh Industrial Disputes Act, 1947. This challenge, however, was given up by the learned Counsel for the Employers, during the hearing on 11.02.2020. The challenge is, therefore, confined to the validity of the impugned award.
5. Proceedings before the Labour Court commenced on a reference made under Section 4-K of the U.P. Industrial Disputes Act vide order dated 28.09.1989, in the following terms (translated into English from Hindi vernacular):
“Whether the Empl
