Shishir Kumar, J. - (1.) The present writ petition has been filed for quashing the recovery certificate dated 14.2.2000 and the Office Order dated 26.6.2000 and the order dated 29.4.1999 passed under Section 33-C(2) of the Industrial Disputes Act before respondent No. 2 against the petitioners' partner to get the closure compensation, encashment of earned leave and bonus for the year 1996-97 and 1997-98 through their representative Sri Kamlapati Tripathi copy of the said application has been filed as Annexure-1 to the writ petition. After issuance of the notice, a written statement was filed on behalf of the petitioner stating therein that the amount mentioned in the said application is disputed as the petitioners' establishment being registered under the Factories Act was closed w.e.f. 25.3.1998 and prior to closure, there were illegal strikes by the workers on three occasions namely from 20.3.90 to 20.4.90, from 20.8.96 to 24.8.96 and from 22.11.97 to 6.12.1997. Thus the services of the workers were interrupted for the period of illegal strikes hence, closure compensation due to the strike could not be computed. It was further stated that vide Section 25FFF of the Industrial Disputes Act, closure compensation is payable to those workers who are in continuous service for not less than one year. Further Section 2 (g) of the U.P. Industrial Disputes Act excludes the period of illegal strike from continuous service and the legality and illegality of the strike could only be decided on a reference under Section 4 (k) of the U.P. Industrial Disputes Act. As such the workers are not entitled for the relief claimed regarding bonus. Further submission was made that proceeding under Section 33-C(2) is not a forum for the same is provided under Section 21 of the Bonus Act, which is a complete procedure for recovery of bonus and Section 22 directs that if there is any dispute, the same would be deemed to be industrial dispute and could be referred to under the Industrial Disputes Act. Neither the respondents file any paper in support of their claim nor any witness was examined in support thereof. On the other hand, on an application moved by the employer, a file was summoned from the office of the Deputy Labour Commissioner, which clearly indicated the documents regarding the illegal strike available on the aforesaid file, which clearly corroborates the case of the petitioners.
(2.) Respondent No. 2 vide its order dated 29.10.1997 repelled the objection raised on behalf of the petitioner about the maintainability of the application and other legal aspect and directed the petitioner to pay the bonus claimed for the year 1997 with interest to the tune of 15%, closure compensation, encashment of earned leave and the amount in lieu of closure notice with 15% interest from the date of closure to the date of payment.
(3.) It has been submitted on behalf of the petitioner that the respondents have not submitted any supporting evidence to claim the aforesaid benefits. It is well settled in law now that the proceedings under Section 33-C (2) of the Industrial Disputes Act is in the nature of execution proceeding when it is based on undisputed and existing right could only be decided. The legality and illegality of the strike being item No. 4 in the second schedule in the Industrial Disputes Act, the question could only be decided in the reference by the proper government either under Section 10 or under Section 4-K of the U.P. Industrial Disputes Act. Therefore, the application under Section 33-C(2) was not maintainable. The further submission has been made on behalf of the petitioner that in view of the proviso of Section 2 (g) continuous service has been defined, which clearly excludes the period of illegal strike; therefore, the order of payment of closure compensation, which includes the period of strike, is not maintainable. Unless a reference for determination of period of strike as legal or illegal is made by the appropriate government and adjudicated by the labour court, there cannot be any presumption that the strike was legal and benefit be given to the workers. It is admitted case of the parties that no reference to adjudicate the legality and illegality of the strike was made by the State Government. It has further been submitted on behalf of the petitioner that the Apex Court has held that interruption by illegal strike by itself interrupted the continuity of service and there was no further necessity to terminate the services by way of dismissal. However, the respondent No. 2 has erred in accepting the strike to be legal and has given the benefit to the workers. The onus was on the workers to prove the legality or illegality of the strike under Section 33-C(2).;