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TMI Blog1969 (4) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... of the power under s. 6 of the Indian Electricity Act, 1910, the State Electricity Board, U.P.-hereinafter referred to as the Board took over the undertaking of the Company at Allahabad and Lucknow from the mid-night of September 16, 1964. The Company accordingly ceased to carry on the business of generation and distribution of electricity in the areas covered by the original licences. All the workmen of the undertakings at Allahabad and Lucknow were taken over in the employment of the Board with effect from September 17, 1964, without any break in the continuity of employment. On December 22, 1964, 443 workmen employed in the Allahabad undertaking filed before the Labour Court, applications under S. 6-H(2) of the U.P. Industrial Disputes Act, 1947, for payment of retrenchment compensation and salary in lieu of notice. The work-men submitted that fresh letters of appointment were issued by the Board on September 16, 1964, taking them in the employment of the Board with effect from September 17, 1964 in the posts and positions which they previously held , but without giving credit for their past services with the Company. The workmen contended that they were entitled to retren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1947, was enacted by the Provincial Legislature. The scheme of them two Acts is substantially the same. Chapter V-A relating to layoff and retrenchment was added in the Industrial Disputes Act by Act 43 of 1953 with effect from October 24, 1953. From time to time amendments were made in the provisions of the Act. By s. 25-J (2) it was provided For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of this Chapter. After this sub-section was incorporated in the Industrial Disputes Act, 1947, a group of sections including s. 6-R were incorporated in the U.P. Industrial Disputes Act by U.P. Act 1 of 1957. Section 6-R(2) provided : For the removal of doubts, it is hereby declared that nothing contained in Sections 6- H to 6-R shall be deemed to affect the provision of any other law for the time being in forc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter specified in the First Schedule and for performing such other functions as may be assigned to them under the Act. The items specified in the First Schedule are- 1. The propriety or legality of an order passed by an employer under the Standing Orders; 2 . The application and interpretation of Standing Orders 3 . Discharge or dismissal of workman including reinstatement of, or grant of relief to, workmen wrongfully dismissed; 4. Withdrawal of any customary concession or privilege; 5. Illegality or otherwise of a strike or lock-out; and 6. All matters other than those, specified in the Second Schedule. Section 4-B authorises the State Government to constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter whether specified in the First Schedule or the Second Schedule. Item 10 of the Second Schedule relates to Retrenchment of workmen and closure of establishment . Prima facie, disputes relating to retrenchment of workmen and closure of establishment fall within the exclusive competence of the Industrial Tribunal, and not within the competence of the Labour Court constituted under s. 4-A. The Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty by the Company did not affect the jurisdiction of the Labour Court. In several decisions of this Court the inter-relation between sub-ss. (1) (2) of s. 33-C (which are substantially in the same terms as sub-ss. (1) (2) of S. 6-H of the U.P. Industrial Disputes Act) was examined. It was held by this Court in The Central Bank of India Ltd. v. P. S. Rajagopalan etc.([1964] 3 S.C. 140) that the scope of s. 33-C(2) is wider than that of S. 33-C(1). Claims made under s. 33-C(1) can only be those which are referrable to settlement, award or the relevant provisions of Ch. V-A, but those limitations are not to be found in S. 33-C(2). The three categories of claims mentioned in S. 33-C(1) fall under S. 33-C(2) and in that sense s. 33-C(2) can itself be deemed to be a kind of execution proceeding, but it is possible that claims not based on settlements, awards or made under the provisions of Ch. V-A may also be competent under s. 33- C(2). Elaborating this thesis Gajendragadkar, J., who delivered the judgment of the Court observed (pp. 155-156) There is no doubt that the three, categories of claims mentioned in s. 33C(1) fall under s. 33C(2) and in that sense, s. 33C(2) can itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertain the petitions under s. 33C(2). The language of s. 25FF in the view of the Court made it perfectly clear that if the right to compensation accrued under the Act, the workmen became entitled to receive retrenchment compensation, when under the Madras Act the undertaking stood transferred to the State Government from the Company. Referring to the contention that the Labour Court was not competent to determine the liability to Day retrenchment compensation, where the liability itself was denied, the Court referred to the judgments of this Court in Chief Mining Engineer, East India Coal Co. Ltd. v. Rameswar and Others([1968] 1 S.C.R. 140); State Bank of Bikaner ([1968] 1 L.L.J. 589) ; and Jaipur v. R. L. Khandelwal Punjab National Bank Ltd. v. K. L. Kharbanda([1962] Supp. 2 S.C.R. 977); Central Bank of India v. P. S. Rajagopalan and Others([1964] 3 S.C.R. 140); and Bombay Gas Company Ltd. v. Gopal Bhiva and Others[1964], and proceeded to observe that the right which has been claimed by the various workmen in their applications under S. 33C(2) of the Act was a right which accrued to them under s. 25FF of the Act and was an existing right at the time when those applications were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention disclosed by ss. 33 C ( 1 ) and 3 3 -C (2) is fairly clear. Under s. 33-C(1) where any money is due to a workman from an employer under a settlement or an award or under the provisions of Ch. V-A, the workman himself, or any other person authorised by him in writing in that behalf, may make an application to the appropriate Government to recover of the money due to him. Where the workman who is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money, applies in that behalf, the Labour Court may under s. 33-C(2) decide the questions arising as to the amount of money due or as to the amount at which such benefit shall be computed. Section 33-C(2) is wider than s. 33C(1). Matters which do not fall within the terms of s. 33C(1) may, if the workman is shown to be entitled to receive the benefits, fall within the terms of s. 33C(2). If the liability arises from an award, settlement or under the provisions of Ch. V-A, or by virtue of a statute or a scheme made thereunder, mere denial by the employer may not be sufficient to negative the claim under s. 33-C(2) before the Labour Court. Where however the right to retrenchm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding anything contained in Section 6-N no workman shall be entitled to compensation under that section by reason merely of the fact that there has been a change of employers in any case where the ownership or management of the undertaking in which he is employed is transferred, whether by agreement or by operation of law, from one employer to another Provided that- (a) the service of the workman has not been interrupted by reason of the transfer; (b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable than those applicable to him immediately before the transfer; and (c) the employer to whom the ownership or management of the undertaking is so transferred is, under the terms of the transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer. In the present groups of appeals it is common ground that -there was no interruption resulting from the undertaking being -taken over by the Board. The agreements between the Board and the workmen to admit the workmen into emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Board. In The Board of Directors of the South Arcot Electricity Distribution Company Ltd. v. N. K. Mohammad Khan, etc.([1969] 2 S.C.R. 902), to which we have already made a reference, it was contended on behalf of the Electricity Company that the liability to pay retrenchment cornpensation did not fall on the licensee, but on the Madras Government. This Court held, having regard to the scheme of the Act that if retrenchment compensation is payable, it is the original undertaking which remains liable, and not the undertaking which takes over the business. Counsel however relied upon ss. 6 and 7 of the Indian Electricity Act, 1910, in support of his plea that the liability to pay retrenchment compensation rests upon the undertaking which takes over the undertaking. Section 6 of the Indian Electricity Act, 1910, provides : (1) Where a license has been granted to pay person, not being a local authority, the State Electricity Board shall--- (a) in the case of a license granted before the commencement of the Indian Electricity (Amendment) Act, 1959, on the expiration of each such period as is specified in the license; and (b) have the option of purchasing the undertaking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided : (1) The Contingencies Reserve shall not be drawn upon during the currency of the licence except to meet such charges as the State Government may approve as being- (a) expenses or loss of profits arising out of accidents, strikes or circumstances which the management could not have prevented; (b) expenses on replacement or removal of plant or works other than expenses requisite for normal maintenance or renewal; (c) compensation payable under any law for the time being in force and for which no other provision is made. (2) On the purchase of the undertaking, the Contingencies Reserve, after deduction of the amounts drawn under sub-paragraph (1), shall be handed over to the purchaser and maintained as such Contingencies Reserve : Provided that where the undertaking is purchased by the Board or the State Government, the amount of the Reserve computed as above shall, after further deduction of the amount of compensation, if any, payable to the employees of the outgoing licensee under any law for the time being in force, be handed over to the Board or the State Government, as the case may be. Clause V only provides for the appropriation of the Contingencies R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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