R.K.Mahajan, J. - (1.) The 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 under Section 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 under Section 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 under Section 8 of Act of 1972 and there is penal provision under Section 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 under Section 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.;