- (1.) SHISHIR Kumar, J. The present writ petition has been filed for quashing the order dated 2-9-1999 passed by respondent No. 1in Case No. 37 of 1998, Annexure-11 to the writ petition and further for quashing the recovery certificate dated 22-9-1999 issued by the Tehsildar, District-Deoria, Annexure-13 to the writ petition.
(2.) THIS writ petition has been filed by U. P. State Sugar Corporation Ltd. Unit, Deoria, District-Deoria alleging that State of U. P. acquired the Deoria unit under the provisions of U. P. Sugar Undertaking (Acquisition) Act, 1971 and the said unit is vested with the U. P. State Sugar Corporation Ltd. under the provisions of the Act w. e. f. 24-4-1989. Prior to 24-4-1989 the aforesaid unit was being run and managed by the erstwhile private management M/s. Deoria Sugar Mills. According to Section 3 of the Act the unit was acquired by the State of U. P. and vested with the Sugar Corporation free from all encumbrances, debts, liabilities etc. The provisions of Section 3 of the U. P. Sugar Undertakings (Acquisition) Act, 1971 is being reproduced below: "3. Vesting.-On the appointed day, every schedule undertaking shall, by virtue of this Act, stand and be deemed to have stood transferred to and vest and be deemed to have vested in the Corporation free from any debt, mortgage, charge or other encumbrance or lien, trust or similar obligation (excepting any lien or other obligation in respect of any advance on the security of any sugar stock or other stock-in- trade) attaching to the undertaking: Provided that any such debt, mortgage, charge or other encumbrance or lien, trust or similar obligation shall attach to the compensation referred to in Section 7, in accordance with the provisions of that section, in accordance with the provisions of that section, in substitution for the undertaking: Provided further that a debt, mortgage, charge or other encumbrance or lien, trust or similar obligation created after the scheduled undertaking or any property or asset comprise therein had been attached, or a receiver appointee over it, in any proceedings for realization of any tax or cess or other dues recoverable as arrears of revenue shall be void as against all claims for dues recoverable as arrears of revenue. " As such the petitioner submits that the petitioner is not liable for any liability whatsoever which pertains to the period prior to the date of vesting of the unit with U. P. State Sugar Corporation Ltd. for which liability separate provisions have been made in the Act and reference to that is being made to Sections 7 and 8 of the Act. It appears that erstwhile private management of M/s. Deoria Sugar Mills Ltd. dispensed with the service of respondent No. 2 w. e. f. 5-1-1984 much prior to the date of vesting. Against the order of termination respondent No. 2 raised a dispute and filed Adjudication Case No. 15 of 1985 and the reference was made whether the action of the employer in dispensing with the service of respondent No. 2 from the post of clerk w. e. f. 5-1-1984 was legal and valid? The Labour Court vide its award dated 16- 8-1986 directed that the dispensing of service of respondent No. 2. w. e. f. 5-1-1984 is not legal and valid and directed for reinstatement and has also directed for payment of his wages from the date of award. From the perusal of the award dated 16-8-1986 it demonstrates that the same was passed prior to the vesting of the unit with the Sugar Corporation against Deoria Sugar Mills. Against the award dated 16-8-1986, Deoria Sugar Mills filed Writ Petition No. 2104 of 1987 before this Court in which an interim stay order was granted by this Hon'ble Court subject to compliance of the provisions of Section 17-B of the Industrial Disputes Act. When Deoria Sugar Mills did not make the payment to respondent No. 2, respondent No. 2 filed Case No. 1 of 1991 before the Prescribed Authority under the Payment of Wages Act for payment of his wages from 1-8-1989 to 30-9-1990. The Prescribed Authority after hearing the parties at length rejected the claim of respondent No. 2 against the Sugar Corporation vide its order dated 11-2-1993. Aggrieved by the aforesaid order respondent No. 2 filed a writ petition before Lucknow Bench of this Court as Writ Petition No. 5539 of 1993 for a direction that he may be reinstated as a clerk in terms of the award dated 16-8-1986 and may be paid his wages accordingly. The writ petition was finally allowed and in the operative portion of the judgment it was held that so far as the payment of arrears of salary is concerned, the aforesaid question is left open and corporation was directed to take back respondent No. 2 in service. Respondent No. 2 in pursuance of the order of the High Court dated 6-1-1994 was reinstated in service-vide its order- dated 13-10-1994. Respondent No. 2 joined his duties on the same day and an application on 24-6-1998 was filed by respondent No. 2 before respondent No. 1 in pursuance of the award dated 16-8-1986 for payment of salary for the period from 15-11-1986 to December 1994. The petitioner filed a detailed objection to the aforesaid application before the respondent No. 1 stating therein that as per the award as well as on the basis of the order in writ petition dated 6-1-1994, the petitioner is not liable to pay the back wages and is only liable to reinstate the respondent No. 2 in service, which has already been done. An objection was also taken that the application is not maintainable. But the respondent No. 1 without considering the facts and evidence on record and the provisions of law passed the impugned order dated 2-9-1999 holding that as respondent No. 2 has neither been paid his wages nor has been reinstated in pursuance of the award of the Labour Court as well as the order of Lucknow Bench, therefore, the application of respondent No. 2 is liable to be allowed and the amount be recovered from the petitioner. Respondent No. 1 on 2-9-1999 sent a letter to the Collector for recovery of the amount from the petitioner and in pursuance of the aforesaid fact, Tehsildar Deoria has issued a recovery certificate on 22-9-1999 against the petitioner for recovery of Rs. 1,68,723. 61 plus recovery charges. As the order passed by respondent No. 1 was wholly illegal, hence, the present writ petition.
(3.) IT has been contended on behalf of the petitioner that respondent No. 1 has committed an error by not considering that the award could not be implemented against the petitioner company, as the same was not passed against the petitioner company. In view of the provisions of Section 3 of Industrial Disputes Act, the pre-take over liability cannot be settled upon the petitioner, for which there are separate provisions contained in Sections 7 and 8 of the Act by way of moving an application before the Prescribed Authority. IT has further been submitted on behalf of the petitioner that the application filed by respondent No. 2; under Section 6-H (1) of the Industrial Disputes Act was not maintainable. IT has also been submitted that the Labour Court having assumed jurisdiction for the reason that the dispute was not with regard to retrenchment could not have proceeded to examine the issue of retrenchment and to hold it to be invalid for the alleged violation of Section 6-N and Section 6-P of the Industrial Disputes Act. The award is thus wholly without jurisdiction and nullity and therefore, incapable of being enforced. IT is well-settled that the order passed by a Court having no jurisdiction is non-est and the validity can be set up even at the stage of execution or collateral proceeding. Reliance has been placed upon the judgment of the Apex Court in AIR 1966 SC 634, Bohrein Petroleum Co. v. P. J. Pappu and AIR 1954 SC Page 340, Kiran Singh v. Chaman Paswan. Further submission has been made on behalf of the petitioner that the dispute was the subject-matter of adjudication before the Labour Court between Deoria Sugar Mills and respondent-workman Avadhesh Kumar Mishra. The Corporation was not a party to the award, as such the same cannot be binding in view of Section 18 of the Industrial Disputes Act. The award was challenged before this Court and an unconditional stay order was passed by this Court on 28-1-1987. On the date of acquisition of the aforesaid Sugar Mill by the Corporation i. e. 24-4-1989 the award was not operative even against M/s. Deoria Sugar Mill. The stay vacation application filed by respondent-workman was rejected by this Court on 7-10-1989 only with a slight modification that the stay order was made subject to compliance of Section 17-B of the Industrial Disputes Act. Deoria Sugar Mill was acquired by the petitioner Corporation w. e. f. 24-4-1989 and by virtue of Section 3 of the Act 1971 free from any debt mortgage charge or other encumbrances or lien trust or similar obligation. The provisions of the Acquisition Act which are relevant is being quoted below: "section 8 (5) stipulates that any person who was employed in connection with the scheduled undertaking immediately before the appointed day may prefer with the Prescribed Authority any claim relating to any salary, wages, etc. in respect of any service rendered by him with the undertaking before the said date. Sub-section (7) of Section 8 further provides that such claim may be preferred whether or not a decree or Award has been obtained on the basis thereof. Sub-section (14) of Section 8 enjoins that all such claims shall be satisfied from the compensation amount and liabilities in respect thereof shall stand discharged. Section 10 of the Acquisition Act refers to establishment of a Prescribed Authority having powers of a Civil Court for deciding all such claims. Section 12 provides for constitution of a Tribunal to hear Appeals against decision of the Prescribed Authority. Section 14 of the Act bars jurisdiction of all Courts in respect of decision of the Prescribed Authority. Section 15 (ii) specifically provides that liabilities in respect of unsatisfied claims and other dues shall not be transferred to the State Government or the Corporation. ";