S.N. Jha, J.
1. This batch of eight writ petitions involving a common dispute were heard together and are disposed of by this common order. The petitioners in effect and substance seek direction upon the respondents to take over the services of the employees and workmen of SKG Sugar Limited Lauriya, SKG Sugar Limited, Hathua and SKG Sugar Limited, Siwan, hereinafter referred to as the Undertakings.
2. The Bihar Sugar Undertakings (Acquisition) Act, 1976 (Bihar Act XIII of 1977) (hereinafter referred to as the 1976 Act) was enacted by the State Legislature to provide for acquisition and transfer of certain sugar undertakings in the State of Bihar and for matters connected therewith and incidental thereto. The schedule appended to the Act contained list of eight sugar undertakings. In terms of Section 3 of the Act the undertakings listed in the schedule stood transferred to and vested in the . Government of Bihar/Bihar State Sugar Corporation Limited on and from the appointed day with all the assets, liability, rights, title, interest and obligation including any mortgage, charge or other encumbrance or lien, trust or similar attached to the undertaking. Section 17 of the Act empowered the State Government to add any other undertaking to the schedule by notification published in the official gazette. Upon such addition and amendment of the schedule the added undertaking were to be deemed to have vested in the State of Bihar/Bihar State Sugar Corporation with effect from the date mentioned in the notification. It is relevant to mention that the 1976 Act came into force on 20-6-1977 which was thus treated as the 'appointed day'. On 29-10-1978 the State Government notified 16 sugar undertakings adding them to the schedule in terms of Section 17 of the Act under S.O. 1356 with effect from the date of notification i.e. 29-10-1978. The undertakings with which we are concerned in these cases were mentioned in the list of the added 'undertakings at Serial Nos. 4, 10 and 15. The owners of some of them challenged the take over/ acquisition in the Calcutta High Court. By judgment and order dated 12-7-1979 a learned Single Judge of the Calcutta High Court allowed the writ petitioners declaring the Act as ultra vires being beyond the competence of the State Legislature. The notification under Section 17 of the Act dated 29-10-1978 was also held to be bad as being result of excessive delegation of essential legislative functions. The State of Bihar preferred appeals before the Division Bench of the High Court. During pendency of the appeals the management of the concerned undertakings withdrew the relevant writ petitions. Consequently, while allowing the writ petitions to be withdrawn by order dated 18-9-1984 the Judgment and order of the learned Single Judge was set aside and the appeals were dismissed as infructuous. On 29-9-1984 the State Government withdrew the notification, S.O.1356 dated 29-10-1978, to the extent it related to the undertakings in question i.e. SKG Sugar Limited, Lauriya, SKG Sugar Limited, Hathua and SKG Sugar Limited, Siwan. On 21-10-1985 the Bihar Sugar undertakings (Acquisition) Ordinance 1985 (Bihar Ordinance No. 38 of 1985) was promulgated to provide for the acquisition and transfer of the right, title and interest in respect of the sugar mills and the ancillary or subsidiary mills appertaining to such sugar mills specified in the first schedule to the Ordinance. The undertakings in question figured in the list of five sugar undertakings mentioned in the schedule. The said Ordinance was replaced by Bihar Act 12 of 1985 (hereinafter referred to as the 1985 Act) with same provisions regarding acquisition and transfer of the right, title and interest etc. of the five Sugar Companies undertakings. The validity of the Act was challenged before the Supreme Court in batch of writ petitions being Writ Petition (Civil) No. 12598/85 and analogous. They were finally dismissed recently on 18-2-2003. It would not be out of place to mention that the cases in hand were kept pending awaiting the decision of the Supreme Court in the above said case.
3. The validity of the Act having been upheld by the Supreme Court the only question raised for consideration is as to whether the transfer of employees and workmen other than Directors took place under Section 11 of the 1976 Act or Section 11 of the 1985 Act. Section 11 of the 1976 Act provided that save as otherwise provided in the Section, every person other than a Director of a Company or a subsidiary company of such Company in whom the ownership, management or control of the scheduled undertakings was vested immediately before the appointed date shall, on and from the appointed day become an employee of the Corporation and shall hold the office and service therein by the same tenure, at the same remuneration and upon the same terms and conditions, and with the same rights and privilege as to pension, gratuity etc. as he would have held the same on the appointed day if the undertaking had not been transferred to and vested in the Corporation, and shall continue to do so until his employment is terminated or until his remuneration or other terms and condition of service are revised or altered by the Corporation under or in pursuance of any law or in accordance with any provision which for the time being governs his service. It is not necessary to refer to the proviso or other parts of Section 11 for the purpose of these cases.
4. Section 11 of the 1985 Act contains similar provision regarding transfer of the employees and workmen of the Scheduled Undertakings. Under Sub-section (2) thereof every person who is a workman within the meaning of the Industrial Disputes Act 1947 and had been in the employment of the scheduled undertaking on or before 29-10-1978 shall become on and from the appointed day, an employee of the State Sugar Corporation/Government Company, as the case may be, in which the right, title and interest of scheduled undertakings have vested under the Act, and shall hold office or service in the scheduled undertakings to the same right of pension, gratuity etc. as would have been admissible to them if the rights in relation to such a scheduled undertakings had not been transferred to and vested in the State Government/Corporation and continued to do so unless and until his employment in the Scheduled Undertaking is duly terminated or until his remuneration, terms and conditions of employment are duly altered by the State Government/Corporation. The above provision, however, is circumscribed by a clause, by way of proviso, which empowers the State Government to enquire about the genuineness of the workmen at any time whether the workman was genuinely employed in the undertaking on or before 29th October, 1978 and terminate the services of such workman who were not so employed. Apparently, the corresponding provisions of Section 11 of the 1976 Act were more favourable to the employees as there was no provision for any kind of enquiry.
5. The case of the petitioners is that their services stood transferred to and they became employees of the State Sugar Corporation under Section 11 of the 1976 Act and therefore, there is no question of second transfer under Section 11 of the 1985 Act, While developing the case of the petitioners it was submitted by the learned Counsel that the process of transfer/vesting of the services/employment was irreversible. The transfer/vesting having taken place there could not be de-vesting in the absence of any provision in the Act. It was also submitted that the withdrawal of the notification S.O.1356 dated 19-10-1978 by notification dated 29-9-1984 did not result in cessation of employment or the petitioners' removal from service. As a matter of fact, according to the Counsel, the whole exercise was mala fide which is evident from the fact that on 29-9-1984 the notification dated 19-10-1978 was withdrawn but only after a year the undertakings were against acquired under ordinance No. 38 of 1985. It was submitted that the whole object of 1976 Act was to acquire sugar undertakings. Though only eight undertakings were acquired under the Act, the Act empowered the State Government to add to the list without any corresponding provision to exclude them later. The vesting being a fait accompli there could not be de-vesting in the absence of any provision in the Act nor the relevant provisions of the General Clauses Act, namely, Section 21 of the (Central) General Clauses Act, 1897 or Section 24 of the Bihar and Orissa General Clauses Act, 1917 could be invoked. It was submitted that Section 18 of the 1985 Act which contains the repeal and saving provisions provides that notwithstanding the repeal of 1976 Act, the previous operation of the repealed enactment or anything duly done or suffered thereunder or any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactment or any penalty forfeiture or punishment incurred thereunder or any pending investigation proceeding etc. in respect of such right, privilege obligation liability penalty forfeiture or punishment are not affected by repeal of the Act. In support of the contention reliance was placed on Lt. Governor of Himachal Pradesh v. Avinash Sharma, AIR 1970 SC 1576, Lachmi Narain v. Union of India and Ors., AIR 1976 SC 714 and Chief Conservator of Forests v. Ratan Singh Hans, AIR 1967 SC 166.
6. On behalf of the respondent it was submitted that the acquisition of the undertakings in question never took effect. The undertakings in question were added to the schedule in terms of 1976 Act on 29-10-1978. Only two days after on 31-10-1978 the Calcutta High Court passed interim order restraining State of Bihar from taking possession of the undertakings. The petitions were ultimately allowed and the notification was held to be ultra vires and illegal on 12-7-1979. The Management surreptitiously withdrew the writ petitions during pendency of the appeal before the Division Bench with an oblique motive, in the meantime it had created encumbrances and liabilities. By withdrawing the writ petitions the Management wanted to covert its liabilities into a public debt. It was submitted that while upholding the validity of the Act (1985 Act) the Supreme Court has noticed these aspects of the case in its judgment dated 18-2-2003. In response to the petitioners' argument that the instant writ petitions are on behalf of the employees and workmen and not the management, it was submitted that they are hand in glove.
7. In my opinion, it is not necessary to consider above submissions of the Counsel for the parties. From Annexure-B to the counter-affidavit it appears that by an ordinance, namely, the Bihar Sugar undertakings (Acquisition) (Amendment) Ordinance 1986 (Bihar Ordinance No. 4 of 1986) Section 17 of the 1976 Act was repealed with retrospective effect. The said Ordinance was replaced by Bihar Ordinance No. 23 of 1986 and finally, by Bihar Act 14 of 1987 on 20-4-1987. Section 2 of the said Ordinance/Act by which Sub-section (4) was inserted in Section 18, runs as under :
'Notwithstanding the forgoing provisions of this Section, Section 17 of the Bihar Sugar Undertaking (Acquisition) Act, 1976 (Bihar Act XIII of 1977) shall be deemed to have been repealed with effect from the very date of its enactment, as if that section had never been a part of this Act and no action taken under Section 17 shall be deemed to have ever any effect.'
8. The basis of the claim of the petitioners is the notification dated 29-10-1987 issued in terms of Section 17 of the 1976 Act. The undertakings in question were added to the schedule and in this manner they were sought to be acquired. Section 17 having been repealed with retrospective effect as if the Section was never been part of the 1976 Act, without any saving clause the notification must be held to have become non-existent in the eye of law, As if this was not enough, the amendment further made it clear that no action taken under Section 17 shall be deemed to have ever any effect. The legislature clearly wanted to do away with the effect of the saving clause under Section 18 of the 1985 Act referred to above.
9. The question of enforcement of the rights and obligations flowing from Section 11 of 1976 Act, therefore, does not arise. If Section 17 of the 1976 Act which was the mother of the notification dated 29-10-1978 stood erased from the Statute book from the very date of its enactment as if it never was part of the Act, both the notification dated 29-10-1978 and the consequential acquisition of the undertakings become non-existent as if the notification dated 19-10-1978 was never issued and the undertakings were never acquired under the 1976 Act. The question of transfer of the employment or services of the employees and workmen of the undertakings under Section 11 of the 1976 Act therefore, does not arise.
10. It is relevant to mention here that the validity of the Amendment Ordinance/ Act at no point of time was challenged. When this was pointed out to the Counsel he prayed for time to file application to challenge the validity of the Amendment Act. The amendment has held the filed for last 17 years and during this period the Management was engaged in a long drawn litigation in the Supreme Court. May be that the petitioners herein were not party to the litigation in the Supreme Court but nothing prevented them from challenging the Ordinance/Act during last 17 years or so. In the circumstances, I do not think they deserve this latitude. As a matter of fact, if I may say so, there is hardly any ground to challenge the amendment. The competence of the legislature to amend the particular provision giving it retrospective effect cannot be doubted. The power to make amendment includes the power to delete the provision. The State Government on account of the liabilities and encumbrances created by the previous management apparently found itself in an unenviable position and therefore, decided to do away with Section 17 itself in terms of which the notification dated 29-10-1978 had been issued adding the undertakings to the list in the schedule. The Court cannot question the wisdom of the legislature.
11. The contentions aforesaid were raised in the context of CWJC No. 5881/85 on behalf of the employees union called SKG Chini Mill Mazdoor Sangh. CWJC No. 11/86 is also by the employees union called Rashtriya Mazdoor Sangh, SKG Sugar Factory Siwan. CWJC No. 660/87 too is by a union called Mazdoor Sangh ad hoc Committee Siwan Unit 113 employees of the Siwan Unit of the Bihar State Sugar Corporation also figure as petitioners in this case. They are aggrieved by termination of their services in terms of Section 11 (4) of the 1985 Act. The other petitions are by individual employees. While in CWJC No. 687/85 the petitioner seeks quashing of the notification dated 29-9-1984 by which notification dated 29-10-1978 with respect to the undertakings in question was withdrawn, in the other petitions the petitioners seek quashing of the orders by which their services have been terminated and a direction to treat them in continuous service of the undertaking. The case of two of them namely Sheo Kumar Lal Shrivastava petitioner in CWJC No. 17/86 and Harishchandra Tiwry petitioner in CWJC No, 5509/86 were particularly canvassed at the time of hearing. In CWJC No. 17/86 it was submitted that the petitioner was appointed as Labour Welfare Officer in terms of the Bihar Factory Welfare Officers Rules, 1956. His services were governed by the Rules 5 of the said Rules. However, after the take over of the undertaking his services were orally terminated. In terms of Rule 5(4) of the Rules he could not be discharged etc. except with the previous approval of the labour Commissioner. In CWJC No. 5509/86 it was submitted that the petitioner was Cane Inspector holding a supervisory post. Being a workman he could not be dismissed from service save in accordance with the provisions of the Industrial Disputes Act. And even if it be accepted that in terms of the provisions of Section 11 of the 1985 Act he could not automatically become employee under the State Sugar Corporation the State Government was obliged to make an enquiry under proviso to Section 11 (2) of the said Act.
12. As far as challenge to the notification dated 29-9-1984 is concerned, as observed above, in view of the Bihar Sugar Undertakings (Acquisition) (Amendment) Ordinance/Act (Bihar Act 14 of 1987) deleting Section 17 of the Bihar Sugar Undertakings (Acquisition) Act, 1976 with retrospective effect from the very date of its enactment as if that Section had never been part of the Act, the notification dated 29-10-1978 was like a still born child. As Section 2 of the said Ordinance/Act provided 'no action taken under Section 17 shall be deemed to have ever any effect'. In the circumstances, challenge to the notification dated 29-9-1984 must be held to be a futile attempt.
13. So far as individual cases are concerned the services of the concerned petitioners have been terminated in terms of Section 11(4) of the 1985 Act which runs as under:
'Save as otherwise provided in sub-sections (1) and (2), the services of every persons employed by the owner or occupier of a scheduled undertaking before the appointed day shall stand terminated on and from the specified dated.' Sub-section (2) of Section 11 which is relevant in context has been noticed above. It provides for transfer and vesting of the services of every person, who is a workman within the meaning of the Industrial Disputes Act, in the State Government/ Sugar Corporation, until and unless his employment in the scheduled undertaking is duly terminated. Thus under Sub-section (2) of Section 11 only those who are 'workman' within the meaning of Industrial Disputes Act can be considered for their retention in the employment of the State Government/Sugar Corporation. As against Sub-section (2), Sub-section (4) applies to 'every person' employed by the owner or occupier of a scheduled undertaking. In other words while a workmen within the meaning of the Industrial Disputes Act could be continued in the employment of the State Government/Sugar Corporation the services of every other person employed by the owner or occupier before the appointed day were to 'stand terminated' on and from the specified date. The question of compliance of the provisions of Bihar Factory Welfare Officers Rules or the like therefore, does not arise. It is only in the case of the workmen that the Act provides for an enquiry with respect to their genuineness. This becomes clear from the proviso to Sub-section (2) of Section 11 which runs as under :
'Provided that the State Government may enquire about the genuineness of a workman at any time whether the workman was genuinely employed in an undertaking on or before 29th October, 1978 and may terminate the services of such workman who were not so employed.'
Sub-section (3) of Section 11 also lays down that the State Government/ Corporation in which right, title and interest in relation to a scheduled undertaking have vested may employ on mutually acceptable terms and conditions any persons who is not workman within the meaning of the Industrial Disputes Act, 1947 and who has been, immediately before the 29th October, 1978 in employment of a scheduled undertaking, and on such employment the said person shall become an employee of the State Government.
14. Apparently the impugned orders of terminations have been passed with respect to both the workman those not employed before 29-10-1978 as well as non-workman under Section 11 of the Act. In all the writ petitions the petitioners have challenged the vires of Section 11 of 1985 Act in fact was the sheet anchor of the challenge. The validity of Section 11 have been upheld by the Supreme Court hardly anything survives for consideration.
15. In the result, I do not find any merit in these writ petitions which are accordingly dismissed. There will be no order as to costs.
B.N.P. Singh, J.
15. I agree