SWADESHI COTTON MILLS Vs. P O LABOUR COURT

JUDGEMENT

(1.) The respondent No. 2 made an application under Section 6-H(2)of the U.P. Industrial Disputes Act, 1947, hereinafter referred to as 'U.P. Act' claiming Dearness Allowance on the basis of the Government Order dated April 16, 1985 on the ground that the said Government order was issued by the Bureau of Public Enterprises for Centra] Government Undertakings and is also applicable in respect of the petitioner's Undertaking. The petitioner contested the said proceedings by filing written objections denying the entitlement of the workmen to the said benefit. The Labour Court, by order dated March 29, 1994, held that the Deamess Allowance may be given to the workmen according to the notification dated April'16, 1985 for the period between April 1, 1985, and February 26, 1987 which is Annexure '6' to the Writ petition. Aggrieved, the petitioner has challenged the said order dated March 29, 1994 by means of writ petition No. 22019 of 1994. During the pendency of the said writ petition, the Bank Account of the petitioner was attached for the realisation of the amount pursuant to the said order dated March 29, 1994. The petitioner thereupon moved the second writ, petition being Writ Petition No. 28421 of 1995 on the ground that the issue is pending decision in writ petition No. 22019 of 1994 and that the petitioner is being considered for being declared as 'sick industrial unit' by the Board of Industrial Finance and Reconstruction under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985, Section 22 whereof prohibits such recovery.

(2.) Mr. V.B. Singh, learned counsel for the petitioner contends that Section 6-H(2) of the U.P. Act is pari-materiawith Section 33-C(2) of the Industrial Disputes Act. In the present case, the workmen had claimed Dearness Allowance on the basis of the Government Order dated April 16, 1985, but the said Government Order applies to Central Government Undertakings. It does not apply to the Undertaking of the Petitioner inasmuch as all the other units and undertakings of the National Textile Corporation in U.P. are being paid Dearness Allowance as being paid in the State of U.P. and the said Government Order dated April 16, 1985 is not applicable to them. Therefore, the claim of the workmen is not an existing right. Therefore, he contends; (i) the. right of the workmen is not an existing right, therefore cannot be computed under Section 6-H(2) since the said exercise requires determination of entitlement, (ii) the Government of U.P. has issued a notification under Section 3-B of the U.P. Act in which the workmen were parties and had fixed the wage structure and, therefore, the workmen are estopped from claiming anything otherwise than the said wage structure particularly when the workmen have been receiving benefit of the said notification under Section 3-B of the U.P. Act.

(3.) Mr. A. Kumar, learned counsel for respondent No. 2, contends that before the Labour, Court, the petitioner has not made out a case that the present determination does not fall within the ambit of Section 6-H(2). There is no such averment except a bald statement that the Government order dated April 16, 1985 is not applicable on the employers. Such statements is in sufficient to make a ground which is being sought to be espoused now. Secondly, he contends that no document has at all been produced by the petitioner for proving that the workmen's claim is an: entitlement and not an existing right. On the other hand, he claims that it is an existing right and not a determination of entitlement. The third contention of Mr. Kumar was that the petitioner had failed to establish that the notification dated April 16, 1985 is not attracted in the present case. He next contends that no issue was framed by the Labour Court concerning the issue. No question was raised before the Labour Court. It is for the first time such a question has been raised before this Court which can never be raised. Mr. Kumar then contends referring to various sections of the Swadeshi Cotton Mills (Acquisition and Transfer of Undertakings) Act, 1986, that there is no dispute that the Undertaking is a Central Government Unit and as soon it becomes a Central Government Unit, the employees are entitled to the Dearness Allowance payable by the Central Government.