R.K. Mahajan, J.@mdashThe petitioner has moved the present writ petition seeking following reliefs :-
"(i) issue a writ of mandamus commanding the respondents not to enforce or give effect to the notification dated July 15, 1982 issued by the State Government.
(ii) issue a writ of mandamus commanding the respondent No. 2 not to proceed with or decide the application moved by respondent No. 1 which has been made on the basis of the notification dated July 15, 1982."
2. It appears that the petitioner is a Sugar Mill known as Madho Mahesh Sugar Company Limited at Munderwa Bazar in district Basti. It was acquired by the State of U.P. under the provisions of U.P. Sugar Undertakings (Acquisition) Act, 1971 and stood transferred and vested with the U.P. State Sugar Corporation Limited free from any encumbrances on October 28, 1984. The respondent No. 1 after attaining the age of superannuation from service retired on August 1, 1984. It may be mentioned at this stage that the U.P. Government on July 15, 1982 u/s 3 of U.P. Industrial Disputes Act, 1947 issued a notification. The notification aforesaid is quoted below for ready reference :-
"English translation of Shram Anubhag-2 Notification No. 3157 (H.I)/XXXVI-2-201 (ii) (HI)-79 dated July 15, 1982 published in U.P. Gazette extra, dated July 15, 1982 PP 2-3.
Whereas in view of the sick and uneconomic condition of the Sugar Industry, the Bipartite Committees constituted for evaluation of the present situation of the said industry and suggesting ways and means for its amelioration inter alia, in its meeting held on February 12, 1982 in the Uttar Pradesh Sachivalaya, Lucknow, the question of payment of gratuity to the workmen employed in the said industry: And, whereas, members of both the parties present in the said meeting of the Committee, reached an unanimous decision regarding payment of gratuity to the workmen employed in the said industry:
And whereas, in order to enforce the said unanimous decision taken by the said Bipartite Committee the State Government exercising power under Clause (b) of Section 3 of the U.P. Industrial Disputes Act, 1947 (U.P. Act XXVIII of 1947) issued order vide Notification No. 1867 (HI)/XXXVI-2-201 (HI)-79 dated May 4, 1982.
And whereas, the said Bipartite Committee in its meeting held on May 4, 1982, further considered the question of payment of gratuity to the workmen employed in the said Industry and unanimously decided to modify its earlier decision:
And whereas, in the opinion of the State Government it is necessary to enforce the said unanimous decision, taken by the said Bipartite Committee for securing public safety and convenience and maintenance of public order and supplies and services essential to the life of the Community and for maintaining employment also:
Now, therefore, in exercise of the powers under Clause (b) of Section 3 of the U.P. Industrial Disputes Act, 1947 (U.P. Act No. XXVIII of 1947) read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904) and in Supersession of Notification No. 1867 (HI)/XXXVI-2-101-(ii) (HI)-79 dated May 4, 1982 the Governor is pleased to make the following order and to direct with reference to Section 19 of the said Act that notice of this order shall be given publication in the Gazette.
ORDER
1. The management shall pay the amount of gratuity to a retiring workman as may be round due to him by the management on receipt of a clearance slip from the workman in respect of articles of stores, advance etc. The workman shall simultaneously vacate his quarter and hand over its possession to the management.
2. The retiring workman shall be deemed to be in service and shall be entitled to full wages and all fringe benefits as long as the employer does not tender the due amount of gratuity to him.
3. Receipt of payment of the amount of gratuity found due by the employer shall not prejudice the right of the workman to raise a dispute about it, if he considers the amount disputable even on vacation of the quarter and exit from the service.
4. This order shall apply to all workmen covered by the Wage Board for the Sugar Industry and shall remain in force till December 31, 1963".
3. Petitioner''s grievance is that the notification aforesaid is illegal and without jurisdiction as the State Government has no jurisdiction to issue notification. It is further submitted that the State Government can only exercise power u/s 3 (2) (b) of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as U.P. Act) for the temporary measure and it is still in force i.e. till the filing of the writ petition which was filed in the year 1988. In other words, it was in force till July, 1987. The petitioner further alleges that this notification is bad as it is repugnant to Section 7 of Payment of Gratuity Act, 1972 (hereinafter referred to as Act of 1972) and the Rules framed thereunder. It is further alleged that there is complete machinery for recovery of Gratuity u/s 8 of Act of 1972 and there is penal provision u/s 9 of Act of 1972 in case gratuity is not paid. The petitioner''s grievance is that respondent No. 1 never reported for duty after August 1, 1984 and he cannot be treated in service after August 1, 1984 and is not entitled to wages and other benefits unless gratuity is paid. So in nut-shell the grievance of the petitioner is that the deeming clause of notification in case the gratuity is not paid the worker shall be entitled to full wages and so long the gratuity of the employee is against the spirit of Article 14 of the Constitution of India and it may be mentioned that this was a Bipartite Committee agreement to device ways and means to meet the present situation arising out of the industry. Both the parties were present in the said meeting. It may be mentioned that the parties reached at an unanimous decision regarding payment of gratuity and decided to implement and modify the earlier decision. The Government was satisfied in the public interest for securing public safety and convenience and also to maintain supply and service of essential goods to the life of the community and thought it essential to enforce this decision. Admittedly, this decision was to cover all the workmen governed by Wage Board for the Sugar Industry. It may be mentioned that the workman-respondent No. 1 had filed an application u/s 33-C (2) of U.P. Act for payment of wages and gratuity in the Labour Court which was also stayed by the order dated September 12, 1988 by this Court.
4. Shri H.S. Nigam, counsel for the petitioner has submitted on the above lines and his only thrust of argument is that on superannuation of the workman he ceases to be an employee of the sugar factory as defined in Section 2 (2) of the U.P. Act. He further submits that the notification cannot enhance the age of retirement beyond 60 years which is mentioned in the standing Orders. He further submits that the notification cannot override the provision of Actofl972.
5. After hearing Shri Nigam we are of the view that Shri Nigam''s submissions lack force on the following reasonings :-
6. Firstly it is now well established principle of labour laws jurisprudence that settlements are sacred and they are not to be ignored. Their terms and conditions are binding upon the parties unless they have been procured, as a result of fraud, misrepresentation etc. and challenged in proper forum.
7. Sanctity to settlement has been given u/s 18 of the Industrial Disputes Act, 1947 (hereinafter referred to as Central Act). However, this power of issuing notification imposing conditions which was agreed by the parties was issued by the Government after specifying that it was a usual decision. We would like to quote Section 4(5) of Act of 1972 with an advantage:
"4 (5)-Nothing in this Section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer."
8. We would also like to quote Section 3 (b) of U.P. Act with an advantage:
"3 (b)-for requiring employers, workmen or both to observe for such period, as may be specified in the order, such terms and conditions of employment as may be determined in accordance with the order."
9. We are of the view that the deeming clause of service was inserted by the Government at the time of notification with the consent of the parties and there is nothing bad or illegal if such term was inserted to as deterrent measure to avoid to knock at the door of different forums under Act of 1972 and U.P. Act, as the case may be. The workman was not given gratuity in time and as per terms of Bipartite agreement and he proceeded to avail his remedy u/s 33-(C)2 of Central Act, which is quoted for ready reference :-
"33-C(2)-Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months:
Provided that where the Presiding Officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit."
10. Legislature has used the word any money is due to workman under settlement of award and Chapter VIII, Section 33-C(2) mentions that it can be recovered by him. In fact this Section is for the enforcement of existing rights. It is just like an executing proceedings and petition can be filed to claim the amount due under gratuity and also under the settlement.
11. We are also of the view that there is no violation of Article 14 of Constitution of India as the restriction is reasonable and it has been imposed with the consent of the parties just to secure the payment of the gratuity in time. The Payment or Gratuity Act is a social legislation to protect the weaker section of society and the Hon''ble Supreme Court has held valid this piece of legislation in case of
12. We, therefore, for the reasons recorded above dismiss the writ petition finding no force in the arguments of learned counsel for the petitioner. The stay order is vacated. We direct the Labour Court to decide the application pending before it within three months from the date of receipt of a copy of this order.
