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M/s Bijli Cotton Mills, Aligarh v. Presiding Officer, Agra & others - WRIT - B No. 18696 of 1985  RD-AH 936 (28 September 2004)
Civil Misc. Writ Petition No.18696 of 1985
M/s Bijli Cotton Mills, Aligarh Vs. Presiding Officer,
Labour Court, Agra and others
Hon'ble V.C. Misra, J.
Heard Sri Vijay Bahadur Singh Senior Advocate assisted by Ms. Kirtika Singh, learned counsel for the petitioner and learned standing counsel on behalf of respondents 1 & 3. No one has appeared on behalf of respondent no.2.
2. The facts of the case in brief are that the petitioner was an undertaking engaged the manufacture and sale of yarn etc. prior to its taking over and nationalization and was being managed and owned by private directors and was registered as a private limited company under the Companies Act. With effect from May 1970, the entire manufacturing activities were suspended and the then management displayed few lay off notice. However, the mills remain closed for a period of 3 years; meanwhile on October 1972, the Central Government issued an Ordinance No.9/72 Sick Textile Undertaking (taking over of management) Ordinance, 1972; after taking over of the mills, the possession of the mill was transferred to the custodian's nominee as contemplated in the Ordinance and thereafter the partial trial production could only be started with effect from 11th April 1973. Meanwhile, the aforesaid Ordinance was replaced by an Act known as Sick Textile Undertakings (Taking over of Management) Act, 1972. Subsequently, the Government of India issued another Ordinance on 21.9.1974, which was converted into an Act, known as Sic Textile Undertakings (Nationalization) Act, 1974, hereinafter referred to as ''the Act' and the mills came under the effective control of the National Textile Corporation (NTC) with effect from 1st April 1974. During the period of complete stoppage and manufacturing activities between May 1970 to April 1973 and when partial production started with effect from 11.4.1973, certain class of workers who had been employed by the old management on the date and prior to 1970 when the mills have stopped working, raised their grievances that during the period of stoppage they were not properly laid off nor they were allowed to continue to attend the office and thus, they claimed that they were not only entitled for re-employment but were entitled to get full benefits of conditions of service. Since, it was impossible for the present management to take all the erstwhile employees of the mills and since it was working partially, there was hardly need of 300 to 400 number of workmen instead of about 1500 workmen on roll.
3. In the present case, the respondent no.2 Raja Ram Nagar contended that his services have been wrongly terminated. However, since the mills had been taken over by the Central Government on 6.11.1972 and was later on handed over to the Government of India with effect from 21.11.1972, the State Government under Section 4-K of the U.P. Industrial Disputes Act, 1947 made a reference order dated 7.8.1980 for adjudication of the case to the respondent no.1. A reference was made on the question that "whether the State Government was the appropriate Government for making the present reference order ?"
4. The petitioner filed his written statement and contended inter alia that the management was not bound to take all the old employees/workmen and they had no right or claim for employment; the petitioner being a Central Government undertaking, the State Government of Uttar Pradesh was not competent to make a reference under Section 4-K of the Industrial Disputes Act. It was also contended that the concerned workman Raja Ram Nagar had crossed the age of superannuation much prior to 22.11.1972, i.e., the date of taking over of the mills and positively before the 1st April 1974, the appointed date and of the taking over under the Act.
5. After the exchange of pleadings, the labour Court passed the impugned award dated 30.4.1985 wherein in para-12, it has been categorically stated that as per the date of birth of workman was 15.4.1912 as recorded. He had attained the age of 59 years at the time of termination of its services, even the respondent no.2 in his cross examination, has submitted that the other workmen were being retired at the age of 58 years. The respondent no.1-labour Court inspite of the fact that it had held that the workman had attained the age of superannuation prior to the date the reference was made by the Government or the appointed date under the Act, has held that the termination of the services of the workman was not proper and legal and in accordance with the prevailing practice. The petitioner should have been continued till the age of 62 years. It has also been held that since Raja Ram Nagar is now too old and, therefore, there is no question of reinstatement but he is entitled to back wages for the period till he could have reached the age of 62 years.
6. Being aggrieved, the petitioner filed this present writ petition which was admitted an interim stay order was granted on 6.12.1985 staying the operation of the impugned award till further orders. Though time was granted to the respondent no.2 to file counter affidavit. No counter affidavit in rebuttal has been filed controverting the averments made in the writ petition. It is settled law as laid down in AIR 1966 (All.) page-156, AIR 1962 (All.) page-402, AIR 1987 SCC page-479 and AIR 1999 Factory Law Report page-709, that if no evidence in rebuttal is filed and the averments made in the affidavit are not controverted then the said averments must be accepted to be true and correct, drawing the presumption in favour of the petitioner in terms of Section 114 Illustration (G) of the Indian Evidence Act, 1872. In the absence of counter affidavit, this Court is left with no option but to accept the averments made in the petition to be true and correct. More so, as per the Act 1974, the sub clause (2) of Section 4 which reads as under :-
4. (2) All property as aforesaid which have vested in the Central Government under sub-section (1) of Section 3 shall, by force of such vesting, be freed and discharged from any trust, obligation, mortgage, charge, lien and all other incumbrances affecting it, and any attachment, injunction or decree or order of any court restricting the use of such property in any manner shall be deemed to have been withdrawn.
Sub clause (1) of Section 5 of the Act also reads as under :-
5. (1) Every liability, other than the liability specified in sub-section (2) of the owner of a sick textile undertaking, in respect of any period prior to the appointed day, shall be the liability of such owner and shall be enforceable against him and not against the Central Government or the National Textile Corporation.
7. It is an admitted case that the dues as back wages and other ancillary benefits payable to the workman relate to the period prior to the appointed day and would be the liability of erstwhile owners and shall as per law be enforceable against them and not against the Central Government or the National Textile Corporation. More so, under the Act in First Schedule, the Bijli Cotton Mills Private Limited, Agra, U.P. had been provided an amount of Rs.21,49,000/- to meet the expenses as provided for under Section 8 of the Act and for the disbursement of the such payment, the Commissioners for payment have been notified under Section 17 of the Act and the entire procedure has been laid down under the said Chapter. In view of this, I find that the respondent no.1 has grossly erred in fastening any liability of the petitioner in respect with the claim setup by the respondent no.2-workman before the labour Court. The award dated 30.4.1985 annexure-9 to the writ petition is quashed. The writ petition is allowed. No order as to costs.
September 28, 2004
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