Mrs. Sujata Manohar, J
1. Petitioner - The National Textile Corporation (South Maharashtra) Ltd.- is a Company registered under the provisions of the Companies Act, 1956. By virtue of the provisions of the Textile Undertakings (Taking over of Management) Act, 1983, the management, inter alia, of Textile Mills known as Finlay Mills and the Gold Mohur Mills - Respondent Nos. 4 and 5 herein is vested in the petitioners.
2. Respondent Nos. 2 and 3 P.J. Kapadia and Mrs. H.R. Chokshi were the employees of the two mills Respondent No. 4 and 5, who were employed in the retail cloth shop of these mills. The 2nd respondent was employed as a salesman and the 3rd respondent was employed as a sales-girl. On 8th May 1980 a charge-sheet was issued by the said mills to respondent No. 2. On 20.5.1980 a charge-sheet was issued to respondent No. 3. Both the charge- sheets were in respect of a cash memo dated 12.4.1980 prepared by the 3rd respondent at the instance of; the 2nd respondent. It seems that this cash memo, which was for 6 pieces of T/C Labamba quality of cloth, was prepared at the rate of Rs. 55 per piece instead of the rate of Rs. 62 per piece. It was alleged that thereby respondents Nos. 2 and 3 had caused a monetary loss to the Mills to the extent of Rs. 42/- Respondent Nos. 2 and 3 were charge-sheeted for dishonesty and fraudulent behaviour. An enquiry was held against Respondent Nos. 2 and 3 at which they were represented by the 1st respondent-union. The Enquiry Officer gave findings in respect of the 2nd respondent on 31.1.1981 holding that the charge was proved. Similarly the Enquiry Officer gave findings against respondent No. 3 on 18.2.1981 holding that the charge was proved. On 3.4.1981 orders of dismissal were passed against both these employees.
3. An industrial dispute was raised on behalf of the two workmen and a reference was made by the State Government to the Labour Court for adjudication being Reference (IDA) No. 1126 of 1981. During the pendency of these adjudication proceedings Ordinance X of 1983 came into operation as a result of which the management of the undertaking, inter alia, of respondent Nos. 4 and 5 mills was taken over by the Central Government. Thereafter by virtue of the Textile Undertakings (Taking over of Management) Act, 1983 the management of the textile undertakings of respondent Nos. 4 and 5 has been vested in the petitioner. The National Textile Corporation Ltd.-with effect from 18.10.1983, thereafter on the application of respondent Nos. 2 and 3 the petitioner was impleaded as a party to the proceedings before the Labour Court. The petitioner also filed a written statement dated 30.9.1984 before the Labour Court. Ultimately an award dated 3.4.1986 has been passed directing the petitioner as well as respondent Nos. 4 and 5 to reinstate both the workmen with 50 per cent back wages. The Labour Court has held that the punishment of dismissal is shockingly disproportionate, although the charges are held to be proved against respondent Nos. 2 and 3. The Labour Court, after examining the circumstances, has held that since the charges are proved against the workmen, they deserve some penalty but not the penalty of dismissal. Hence if only one half back wages are paid to the workmen, the ends of justice would be met. Accordingly the award directs the opponents, that is to say, the petitioner as well as respondent Nos. 4 and 5, to reinstate both the workmen immediately, to give them continuity of service with effect from 30.4.1981 for the purpose of pension and gratuity and to pay them half the back wages from 30.4.1981 till the date of reinstatement.
4. In the present petition this award of the Labour Court dated 3.4.1986 has been challenged.
5. The first ground of challenge relates to the punishment given to the workmen under the award. It has been contended by the petitioner that the order reducing the punishment of dismissal to reinstatement with only half the back wages is a perverse order and should be set aside. This contention is not sustainable looking to the nature of the charges and the findings which are given against respondent Nos. 2 and 3. In the first place, the only charge is of selling pieces of cloth at the rate of Rs. 55 per piece instead of Rs. 62 per piece. It is an accepted position that these pieces which were sold were not goods which were readily available for sale in the retail shop. They had been produced from the godown and looking to the manner in which the approval slip was prepared in respect of these goods, there was every possibility of a mistake having been committed in respect of the rate which was charged. The total loss to the mills was only Rs. 42/-. In the award the Labour Court has pointed out that there has not been any previous misconduct on the part of either of the respondent Nos. 2 and 3. The Labour Court has also held that dishonest intention on the part of respondent Nos. 2 and 3 has not been established. It has said '...the punishment of the dismissal for loss caused to the company of Rs. 7/- per piece and considering the fact that the items were not running items and those were lying in the store room and that the approval slip was given by Mr. Desai (Store-keeper). I am of the opinion, that the punishment of dismissal is shockingly disproportionate to the charges proved against both the workmen. There is absolutely no evidence on record to show that the past record of the workmen was such that the severe punishment was warranted.' Looking to these observations of the Labour Court and the circumstances set out, in our view, the punishment under the award cannot be considered as perverse or not warranted by the evidence on record. There is, therefore, no substance in the first contention raised on behalf of the petitioners.
6. It is next contended by the petitioners that both respondent Nos. 2 and 3 were dismissed with effect from 3.4.1981. Hence the liability to reinstate these workmen and to pay them half the back wages is a liability which has accrued prior to 18th October 1983, which is the date from which the management of respondent Nos. 4 and 5 mills has been taken over by the petitioner. Hence in view of the provisions of Section 3(7) of the Textile Undertaking (Taking Over of Management) Act, 1983 the liability to reinstate the workmen and to pay them half the back wages is that of respondent Nos. 4 and 5 only and it cannot be enforced against the petitioner.
7. As against this contention of the petitioner, it is contended on behalf of the workmen by Mr. Gokhale and Mr. Dharmadhikari, who have been allowed to intervene in this, petition that the entire liability to reinstate the workmen and to pay them 50 per cent of the back wages is of the petitioner alone. According to them, Section 3(7) of the said Act is not applicable to such a liability to reinstate the two workmen and to pay them 50 per cent of back wages.
8. It is, therefore, necessary to examine the provisions of the Textile Undertakings (Taking Over of Management) Act, 1983 (hereinafter referred to as said Act). The said Act provides for taking over of management of the Textile Undertakings of the companies specified in the First Schedule to the said Act pending nationalisation of such undertakings. The preamble states:
'WHEREAS by reason of mismanagement of the affairs the Textile Undertakings ........their financial condition become wholly unsatisfactory even before the commencement in January 1982 of the textile strike in Bombay and their financial condition has thereafter further deteriorated;
AND WHEREAS certain public financial institutions have advanced large sums of money to the company owning the said undertakings with a view to making the said undertakings viable;
AND WHEREAS further investment of very large sums of money is necessary for reorganising and rehabilitating the said undertakings and thereby to protect the interest of the workmen employed therein and to augment the production and distribution... so as to subserve the interests of the general public;'
the Act has been propounded. The appointed day under the Act is 18th October 1983. Under Section 3, as from the appointed day, the management of all the concerned textile undertakings shall vest in the Central Government. Thereafter the petitioner has been appointed as the Custodian in-charge of management of these undertakings by the Central Government. Under Section 3 Sub-section (2) the Textile Undertakings is deemed to include all assets, rights, lease-holds, powers, authorities and privileges of the Textile Company in relation to the said Textile Undertakings. It also includes all property, movable and immovable, including machinery, equipment vehicles, goods under production, cash balances, investments, etc. in the ownership, possession, power or control of the Textile Company as also all books of account, registers and all other documents pertaining thereto. Under Section 3, Sub-section (3):
Any contract, whether express or implied... in so far as it relates to the management of the business and affairs of the Textile Undertakings and in force immediately before the appointed day... shall be deemed to have terminated on the appointed day.
Under Section 3, Sub-section (4):
All persons in charge of the management.. ...of the Textile Undertakings immediately before the appointed day, shall be deemed to have vacated their offices as such on the appointed day.
Under Section 3, Sub-section (5) by reason of termination of any contract under Sub-section (3) or ceasing to hold an office under Sub-section (4) no claim for compensation can be made for the premature termination of the contract of management or other arrangement or for the loss of office, as the case may be. Under Section 3, Sub-section (6):
Notwithstanding any judgment, decree or order of any court, tribunal or other authority or anything contained in any other law... every receiver or other person in whose possession or custody or under whose control the Textile Undertakings or any part thereof ... shall ... deliver the possession of the said undertakings or such part thereof, as the case may be, to the Custodian. Sub-section (7) of Section 3 reads as under: For the removal of doubts, it is hereby declared that any liability incurred by a Textile Company in relation to the Textile Undertakings before the appointed^ day shall be enforceable against the concerned Textile Company and not against the Central Government or the Custodian.
It is submitted on behalf of the workmen that Sub-section (7) of Section 3 is only for the removal of doubts. This has a reference to what has been stated earlier in Sub-sections (1) to (6) of Section 3. Hence the clarification, which is given in Sub-section (7) is only in respect of liabilities referred to in Sub-sections (1) to (6) of Section 3. It is contended that Sub-sections (3) and (4) of Section 3 deal with the termination of contract of management and vacation of office by managerial personnel on the appointed day. Such termination may give rise to various liabilities. It is only in respect of such liabilities which arise as a result of termination of contract of management or loss of office of the managerial personnel on the appointed day that Sub-section (7)can be applied. In other words, it is contended that any prior liability incurred by the Textile Company in relation to the Textile Undertaking referred to in Section 3(7) must be read as only a liability in respect of the termination of contract of management or loss of office by managerial personnel on the appointed day. If liability in this connection has been incurred before the appointed day, such a liability will be of the Textile Company and it cannot be enforced against the Central Government or the Custodian. This interpretation, in our view, is not warranted. In the first place, the words 'any liability incurred by a Textile Company' are very wide. They cover all liabilities of every description incurred by a Textile Company before the appointed day. It is difficult to see how the words 'any liability' can be restricted only to some liability which may arise under Sub-sections 3 and 4 of Section 3.
9. Mr. Gokhale and Mr. Kocher have relied upon a decision of the Supreme Court in the case of The Workmen v. The Bharat Coking Coal Ltd. reported in : (1978)IILLJ17SC . The case before the Supreme Court involved the interpretation of Section 9 of the Coking Coal Mines (Nationalisation) Act. Under Section 9 of that Act it was provided as under:
9. Central Government not to be liable for prior liabilities. (1) Every liability of the owner, agent, manager or managing contractor of a coking coal mine or coke oven plant, in relation to any period prior to the appointed day, shall be the liability of such owner, agent, manager or managing contractor, as the case may be, and shall be enforceable against him and not against the Central Government or the Government company.
(2) For the removal of doubts it is hereby declared that -
(a) save as otherwise provided elsewhere in this Act, no claim for wages, bonus, royalty, rate, rent, taxes, provident fund, pension, gratuity or any other dues in relation to a coking coal mine or coke oven plant in respect of any period prior to the appointed day, shall be enforceable against the Central Government or the Government company.
(b) xxxxxxxxx
(c) xxxxxxxxx
The Supreme Court was required to consider whether 40 workmen who were dismissed prior to nationalisation and were, after nationalisation, reinstated with continuity of service and back wages were entitled to recover, inter alia, their entire back wages from the nationalised company. In dealing with the question of reinstatement the Supreme Court said that Section 9(1) which dealt with every liability of the owner in relation to any period prior to the appointed day, dealt, with only pecuniary Liabilities and had nothing to do with the reinstatement of workmen. In this connection the Supreme Court relied upon Section 9 Sub-section (2) which had a direct reference to Section 9 Sub-section(1). Under Section 9(2) the provisions of Section 9(1) were clarified ('for the removal of doubts') and it was stated that no claim for wages etc. or any other monetary dues of workmen in respect of any period prior to the appointed day shall be enforceable against the Central Government or the Government Company. Since Section 9(2) was a clarification of Section 9(1), the latter also dealt with monetary liabilities. In regard to back wages, the Supreme Court said that back wages prior to the appointed day could not be claimed from the Central Government or the Government Company.
10. We do not see how this decision helps in the interpretation of Section 3(7) of the present Act. Section 9(1) of the Coking Coal Mines (Nationalisation) Act, 1972 provides generally for the enforcement of liabilities incurred prior to the appointed day against the owner and not against the Central Government or the Government Company. Sub-section (2) clarifies the nature of some of these liabilities. Hence the Supreme Court interpreted the two sub-sections together. The present Section 3 of the Textile Undertakings (Taking Over of Management) Act, 1983 propounds a very different scheme. Apart from Section 3(7), there is no general provision in Section 3 regarding liabilities incurred by the Textile Company prior to the appointed day, which Section 3(7) can be said to clarify. Hence the liability referred to in Section 3(7) has no nexus with any earlier provisions in Sub-sections (1) to (6) of Section 3. It cannot, therefore, be interpreted narrowly with reference to earlier parts or Section 3. The entire Section 3 forms a part of a Chapter dealing with taking over of management of certain Textile Undertakings. In connection with such taking over of management, Sub-sections (3) and (4) of Section 3 provide for termination of certain contracts or management and vacating certain management offices. Sub-section (5) further provides in this connection that any compensation for such termination cannot be claimed. Sub-sections (1) to (6) of Section 3 deal with taking over of management of a textile undertaking, which is extensively defined in Sub-section (2) of Section 3. Some of them the consequences of such a take over are spelt out in Sub-sections (3), (4), (5) and (6). However, as a result of such taking over of management, a question may arise about the responsibility for the discharge of liabilities incurred prior to the date of take over. Hence it is provided in Section 3(7), for the removal of doubts, that any liability incurred by a Textile Company prior to such taking over shall be enforceable against the concerned Textile Company and not against the Central Government or the Custodian. The phrase 'For the removal of doubts' therefore, has to be read in the context of the taking over of management. Section 3 Sub-section (7) does not, in over view, restrict the claims which can be made against the Textile Company only to claim pertaining to Sub-sections (3) and (4) of Section 3.
11. It is next submitted on behalf of workmen that in any event the liabilities referred to Section 3(7) do not cover liabilities qua workmen. Liabilities in respect of workmen must be discharged, by the petitioner and not by the Textile Company. It is submitted that as far as employees are concerned all liabilities in respect of the employees must be considered as having been taken over by the petitioner. The workmen should not be asked to recover their claims from the Textile Company on the ground that the claims arose prior to the appointed day. Reliance is placed on the Supreme Court decision in the case of The Workmen v. The Bharat Coking Coal Ltd. (supra) in support of the contention that Section 3(7) does not deal with liability in respect of workers. The scheme of the Act before us is very different from the scheme of the Act before the Supreme Court. And observations of the Supreme Court regarding Section 9 of the Coking Coal Mines (Nationalisation) Act cannot be blindly applied to Section 3(7) of the present Act.
12. Now, is there anything in the scheme of the Act before us which requires us to exclude from the operation of Section 3(7) liabilities in respect of the employees of the Textile Undertakings whose management is taken over by the petitioner under the said Act? The workmen nave strongly relied upon the preamble of the said Act, which, inter alia, states that one of the objects for taking over of management is to protect the interests of the workmen employed in the Textile Undertakings. This by itself, however, cannot lead to a conclusion that all prior liabilities incurred by the Textile Company in relation to its workmen are taken over by the petitioner, the very same preamble sets out that there was gross financial mismanagement of textile undertakings prior to their take over under the said Act. These companies had borrowed large sums from financial institutions and further investment of very large sums was necessary for rehabilitating these undertakings. This would clearly indicate that without further investment of large sums, these undertakings were not viable and were therefore likely to close down. In this context, any special provisions under the Act to ensure survival of these undertakings would be in the interest of the workmen, who would otherwise lose their jobs if the undertakings were to close down. In view of the problems faced by these undertakings it was, however, necessary to make certain special provisions. For example, under Section 6, which forms part of Chapter III dealing with power to provide relief to Textile Undertakings, it is set out that the Central Government may, if it is necessary in the interest of the general public, with a view to preventing any fall in the volume of production, by a notification declare that all or any of the enactments specified in the Second Schedule shall not apply to such undertakings, or shall apply with such modification or alteration as may be prescribed. These enactments are the Minimum Wages Act, the Industrial Disputes Act, 1947 and the Industrial Employment Standing Orders Act, 1946. Therefore, in public interest, and looking to the financial state of these undertakings, even the Minimum Wages Act, which is for the benefit of workmen, may not be made applicable to such undertaking. This is in the wider public interest to ensure that the undertaking functions and the employment of workmen is not jeopardised. Under Section 6(b) the operation of even agreements, settlements, awards or standing orders which were in force immediately before the date of issue of the notification may be suspended by a notification. As a result any rights, privileges, obligations and liabilities arising under them before the date of notification shall remain suspended. Thus, the Act does contemplate certain measures which may to some extent adversely effect the rights of the employees employed by the Textile Undertakings. But this has been considered to be in public interest and necessary to prevent any fall in the volume of production of the undertaking. Therefore, the interest of workers has to be looked at in this proper perspective of ensuring that the undertakings functions and continues to give production thereby ensuring the continuity of employment of workers. Moreover, under Section 13 of the said Act, the Custodian has the power to terminate a contract of employment before the appointed date if it is found to be unduly onerous. Looking to the scheme of the Act, therefore, it is not possible to say that every liability in connection with the employees of the Textile Undertakings, whether incurred prior to the appointed day or not, is necessarily taken over by the petitioner.
13. Mr. Gokhale placed strong reliance upon the provisions of Section 6(b) in support of his contention that every liability in respect of workers, whether arising prior to the appointed day or not, is taken over by the petitioner. He has submitted that the provisions of Section 6 have become necessary only because prior liabilities quo the employees are taken over by the petitioner. This contention does not appear to be correct. Section 6 has no connection with workmen before the appointed day. Sub-section (1) gives the Central Government power to issue a notification as a result of which either the enactments specified in the Second Schedule shall not apply or apply with modification from the date of issue of the notification. This refers to events which may happen after the take over of management. It has no reference to any liability incurred prior to the take over of the management. Similarly Section 6(b) deals with the power of the Central Government to issue a notification suspending any rights, obligations, etc. which may be in force at the time when the, notification is issued. This also deals with settlements awards, etc. which may govern the employer and employees after the take over. These also have no reference to any past liabilities which may have already accrued before the appointed day. Similarly, under Sub-section (4), if such a notification is issued, then, any pending proceedings in that connection are to remain stayed. In our view, none of the provisions of Section 6 either expressly or by necessary implication indicate that prior liabilities which have accrued in respect of workmen are taken over by the petitioner. Even Section 13, which has been referred to earlier, deals with termination of contract after the take over.
14. Reliance was also placed on Section 4(10) ; as indicating that prior liabilities in respect of workmen are taken over by the petitioner. Section 4(10) merely requires a person in-charge of the management of Textile Undertaking immediately before the appointed day to furnish a complete inventory, including an inventory of all liabilities and obligations of the Textile Undertaking to the Central Government. Furnishing as inventory of liabilities does not entail that such liabilities are taken over by the Central Government or the Custodian. We, therefore, find it difficult to accept the proposition that Section 3(7) does not cover the liabilities incurred by the textile company before the appointed day pertaining to its workmen and the same are enforceable against the Central Government or the Custodian. Section 3(7) in terms declares that any liability incurred by the Textile Company in relation to the Textile Undertakings before the appointed day shall be enforceable against the concerned Textile Company and shall not be enforceable against the Central Government or the Custodian. In view of these clear provisions, we cannot accept the contentions raised on behalf of the workmen.
15. In respect of the present award, which is for reinstatement of 2 workmen and for back wages as from 3.4.1981, it is submitted by the petitioners that both respondent Nos. 2 and 3 were dismissed by the textile companies prior to the appointed day. The liability, therefore, to reinstate them and to pay them back wages has been incurred prior to the appointed day and hence the petitioners cannot be directed either to reinstate these 2 workmen or to pay them any back wages. We will first deal with the question of reinstatement. It is undoubtedly true that both the workmen were dismissed from service prior to the appointed date. The Labour Court, however, has directed that these two workmen be reinstated with continuity of service as far as pension and gratuity is concerned. The effect of the order is that these two workmen are always deemed to have been in service. If that is so, then, on the appointed day, that is to say, 18th October, 1983 these two workmen were deemed to be in service of the Textile Company.
16. In the case of National Textile Corporation v. Rashtriya Mill Mazdoor Sangh reported in (1987) 2 CLR 482 a Division Bench of this High Court [of which one of us (Sugla J.) was a party] has held that when the management of the Textile Undertaking is taken over under the said Act, the provisions of Section 25FF of the Industrial Disputes Act, 1947 have no application since it is a statutory take over under the provisions of the said Act the Division Bench has held that the employees of the Textile Undertaking on the appointed day continue to be the employees of the Textile Undertaking whose management is so taken over by the petitioners under the said Act. In view of this decision, therefore, the two respondent-workmen are deemed to have continued to be in the service of the undertaking on the appointed day. The liability, therefore, to reinstate the workmen is a continuing liability. In continues till such time as the workmen are actually reinstated. Undoubtedly, prior to the appointed day, it was the liability of the Textile Company. But after the appointed day, the liability continues and it arises afresh from day to-day until the workmen are reinstated. It is, therefore, a liability which continues to arise after the appointed day. The petitioner, there fore, is liable to reinstate the two workmen.
17. In the case of Coal India Ltd. v. The Central Government Industrial Tribunal reported in 1977 L.I.C. 1981 the Calcutta High Court was required to consider a case where the award or the Industrial Tribunal involved the question of legality of termination of employment prior to the appointed day and back wages. The court held that in the case of employees whose employment had been terminated by a process which was illegal and which termination was non est in law, the employees continued to be the employees of Coal mills on the appointed day and their rights would be protected under Section 14 of the Coal Mines (Nationalisation) Act, 1973. The nationalised undertaking in such circumstances cannot contend that the liability of reinstatement has been incurred prior to the appointed day.
18. Sabyasachi Mukarji J. (as he then was) held that the prohibition contained in Sub-section (2) of the Coal Mines (Nationalisation) Act, 1973, which stated that the Central Government or the Government company shall not be liable for any prior liabilities incurred by the owner, etc. would have no application to such a situation. He, therefore, directed the Government company to reinstate the workmen and apportioned the back wages so as to direct the Government company to pay back wages after the appointed day and the previous owner, the back wages prior to the appointed day. We are in respectful agreement with this decision of the Calcutta High Court in the case of Coal India Ltd. (supra).
19. Learned Counsel for the petitioner, however, placed a strong reliance upon a decision of the Division Bench of this High Court in the case of W. W. Joshi v. State of Bombay : AIR1959Bom363 , the case dealt with some employees of that part of the State of M.P. which subsequently became a part of the State of Bombay under the State Reorganisation Act, 1956. These employees had been dismissed from service prior to the State Reorganisation Act, 1956 coming into effect. They had, however, challenged their dismissal as wrongful and had claimed reinstatement. After the State Reorganisation Act came into force, they sought to implead the State of Bombay also as a party to these proceedings. This was resisted by the State of Bombay. The Division Bench granted the application of some of these petitioners to implead the State of Bombay as a party to these proceedings. At paragraph 24 of the judgment, however, the Division Bench has observed that even assuming that each of the orders of dismissal were made in contravention of the provisions of Article 311(2) of the Constitution it was an order made by the authority which had jurisdiction to pass such an order. Hence the order of dismissal cannot be termed as non-est or just a piece of paper. It is contended by the petitioner on the basis of this judgment that there were orders of dismissal which could not be treated as non-est at the time when they took over the management. Hence these employees cannot continue in service of the petitioner after the appointed day. In our view, reliance placed by the petitioners on this decision of the Bombay High Court is unwarranted. In the first place, the Division Bench was not required to consider whether the dismissal of employees was non-est or not. The only question before the Division Bench was whether the State of Bombay should be impleaded as a party to the proceedings challenging the dismissal orders. Secondly, in the case before the Division Bench there were no orders of reinstatement. The only orders which were then in existence were orders of dismissal. In the case before us there is an order of reinstatement passed in proceedings to which the petitioners were a party. These orders of reinstatement are valid and binding. As a result of these orders of reinstatement, it is the order of dismissal which is now non-est. In fact, this is what the Supreme Court has observed in the case of The Workmen v. The Bharat Coking Coal Ltd. (supra) : (1978)IILLJ17SC . Therefore, the decision in the case of W. W. Joshi v. State of Bombay : AIR1959Bom363 and the observations in para 24 of the judgment, have no application to the present case.
20. Our attention is also drawn to a decision of the Madras High Court in the case of Pankaja Mills Ltd. v. N. Sivaramkrishna Iyer reported in 1977 L.I.C. 1715. In that case under the Sick Textile Undertakings (Nationalisation) Act, 1974 the mill vested in the Government after its management was taken over. The Court said that the liability of the former owner for provident fund contribution and administration charges is not wiped off. This has no relevance to the case before us because the liability had clearly accrued prior to the appointed day.
21. Our attention was also drawn to adecision of the Madhya Pradesh High Courtin the case of National Textile Corporation(M.P.) Ltd. v. M.P. Electricity Board : AIR1980MP32 in whichthe electricity bills were not paid by theformer owner for the period prior to theappointed day. The Court said that in viewof the Sick Textile Undertakings (Nationalisation) Act, 1974 the pre-appointed dayliabilities were of the previous owner andnot of the National Textile Corporation ofMadhya Pradesh.
22. Similarly in the case of Rashtriya Mill Mazdoor Sangh v. The Model Mills, Nagpur, reported in : (1984)IILLJ507SC the Supreme Court interpreted the Sick Textile Undertakings (Nationalisation) Act, 1974 and held that the liability to pay bonus arising after the take over of the management by the authorised controller would be of the National Textile Corporation and not, of the previous owner. Although these decisions are under different Acts pertaining to nationalisation, the provisions relating to division of liabilities in these Acts is somewhat similar to the provisions of Section 3(7) of the Textile Undertakings (Taking Over of Management) Act, 1983. clearly, therefore, all liabilities which been accrued prior to the appointed day are of the previous owner or of the Textile Company and not of the Central Government or the Custodian.
23. The reinstatement, however, is not a liability which can be said to have been accrued prior to the appointed day. In fact, the Supreme Court in the case of Workmen v. The Bharat Coking Coal Ltd. has observed in connection with reinstatement that workers are not a liability at all. We need not go so far. Even if reinstatement is a liability, it is not a liability which is crystallised at the time of dismissal as contended by the petitioner. It is a continuing liability which arises afresh from day to day and continues until the workmen are actually reinstated. Hence after the appointed day it continues to be the liability of the petitioner alone. On the other hand, as tar as back wages are concerned, the liability to pay back wages as per the award prior to the appointed day i.e. upto 18.10.1983 would clearly be the liability of the Textile Company whose management is taken over. Because this liability has accrued prior to 18.10.1983. But the liability to pay back wages as per the award after 18.10.1983 is clearly of the petitioners, as the workers are deemed to nave continued in the employment of the petitioner after the appointed day.
24. It is next submitted by Mr. Gokhale that even if it is held that the liability to pay 50% of the back wages as per the award to these two workmen prior to 10.10.1983 is of the Textile Company, such a liability can be enforced by execution proceedings which may be available in law, against the assets of the Textile Company. Under the said Act the ownership of the Textile Undertaking is not transferred to the Central Government or the Custodian. In fact, as the recital to the Act sets out, the Act merely provides for the take over of the management of the Textile Undertakings pending nationalisation. No nationalisation has however taken place. With the result that the Textile Company continues to be the owner of all its assets including the textile undertaking whose management is taken over. It is contended by Mr. Gokhale that if the Textile Company continues to be the owner of all its assets including the Textile Undertaking, the workers are entitled to adopt execution proceedings against the assets of the Textile Company including the Textile Undertaking for the purpose of recovery of their dues.
25. This submission though prima facie attractive, has to be examined in the context of the scheme of the entire act. In the first place, as the preamble shows, the taking over of the management of Textile Undertakings is for the purpose of ensuring that the undertakings are properly rehabilitated, the interest of workmen employed is protected and the production and distribution of textiles is not affected. For this purpose, the management of the Textile Undertakings : is taken over so that additional investment of very large amount can be pumped into these undertakings to make them viable. With this end in view, Section 3 of the Act ensures that all the properties and assets of the Textile Undertakings are taken charge of by the Central Government or the Custodian, as the case may be. In fact, Section 3(6) provides that even when a receiver is appointed or any third person is in-charge of such assets pursuant to any judgment, decree or order of a court or tribunal or other authority, even such a person who may be in lawful custody of assets, is required to hand over these assets to the Custodian irrespective of the claims which other creditors may have against such assets.
26. Section 6 enables the Central Government to issue a notification for the purpose of relieving the undertakings of some of the financial burdens to ensure that the undertakings can function without being unduly hampered by contracts and obligations in force. Sections 12 and 13 are also in aid of these provisions.
27. The scheme of the Act, therefore, appears to be that the undertakings whose management is taken over are not to be hampered by any past liabilities which may have been incurred. If decrees and orders or awards which have been obtained in connection with such past liabilities are enforced against the properties of the Textile Undertakings whose management is taken over, the entire Act will become infructuous. In this context if we look at Section 3(7), it provides that any liability incurred by a Textile Company before the appointed day shall not be enforced against the Central Government or the Custodian. The Custodian is defined under Section 2(b) as 'the person appointed under Section 4 to take over the management of the undertakings.' When, therefore, there is a prohibition against the enforcement of prior liabilities against the Custodian, it is a prohibition against the enforcement of such liabilities against a person who is in custody of assets and properties of the Textile Undertaking as described in Section 3(2) read with Section 4. There is no question of the Custodian being personally liable or being protected against any personal liabilities in such a situation. In fact, the Custodian may be a company incorporated under the Companies Act, 1956 as the petitioners are in the present case. Therefore, this prohibition must be considered as a prohibition against enforcement of such prior liabilities against the assets and properties of the Textile Undertakings which are in the hands of the Custodian under the provisions of the said Act. The contention, therefore, that the prior liabilities of the workmen incurred before the appointed day can be enforced in execution against the properties and assets of the Textile Undertaking in charge of the Custodian under the said Act, must be rejected.
28. In the premises, the petitioner in so far as it prays for setting aside the award of the 6th respondent dated 3.4.1986, is dismissed. The petitioners are bound and liable to reinstate respondent Nos. 2 and 3 as if they had been in service of the petitioners from the appointed date i.e. 18.10.1983. The petitioners are also bound and liable to pay in terms of the said award, 50% of the back wages of these workmen as from 18.10.1983 till reinstatement. The petitioners are also directed to give to the workmen continuity of service for the purpose of pension and gratuity as laid down in the said award.
29. As far as the claim of the petitioners for half the back wages from 30.4.1981 to 18.10.1983 is concerned, the two respondents shall be entitled to recover these claims from respondents Nos. 4 and 5 Mills and from the assets and properties of the Mills including their right to receive payments under Section 5 of the said Act, but other than the Textile Undertakings, in such manner as may be available to them in law.
30. Petition is disposed of accordingly with no order as to costs.