ORDER
1. The petitioner has filed this writ application for quashing the order dated 19-2-1979 passed by the Sub-Divisional Officer, Darbhanga, acting as the Certificate Officer under the provisions of the Bihar and Orissa Public Demands Recovery Act, and certain other reliefs. The relevant facts which need be stated are as follows:–
2. The petitioner was a Cashier in the Tirhut Co-operative Sugar Company Ltd., Ryam (Darbhanga) commonly known as ‘Ryam Sugar Mill’. An industrial dispute regarding seniority of the petitioner in the gradation list was referred to the Industrial Tribunal, Bihar., and by the award dated 23-9-1967 (in Reference Case No. 28 of 1966) the petitioner was fixed in the pay scale of Clerical Grade HA with effect from 1-11-1960 (vide Annexure 2) as envisaged by the First Wage Board constituted for the workers of the sugar industries. The Mill challenged the award in this Court in C W. J. C. No. 10 of 1968 but that was dismissed on. 18-1-1971. Obviously, therefore, the petitioner became entitled to get the benefits of the scale of pay etc. as provided under the report of the Wage Board from the date of its implementation (1-11-1960)-
Some dispute further cropped up between the management of the Mill and the petitioner regarding the date of fitment in that scale of pay and the petitioner had to take recourse to a proceeding under the Payment of Wages Act before the Sub-Divisional Officer, Darbhanga who by his order dated 15-2-1972 (Annexure 4) held the petitioner entitled to claim of Rs. 31,769.37 with interest @ 6 1/4% and directed the management to pay the same to the petitioner.
3. The management of the Mill was then taken over by the Tirhut Co-opsrative Sugar Factory, by memo dated 15-12-1972 together with the dues of the labourers as wages etc. The new management also did not make any payment to the petitioner and various technical disputes and objections were raised to the order (Annexure 4) and ultimately the petitioner had to seek clarifications from the District Magistrate, Darbhanga which was disposed of by the Sub-“Divisional Magistrate, Darbhanga, the prescribed authority under the Payment of Wages Act, who by his order dated 20-5-1974 (Annexure 7) held the order. (Annex. 4) as legal and binding. In the meantime the petitioners’ claim rose to Rs. 46,983.22 on a dispute raised by the union of the workmen vide letter of the Labour Commissioner dated 5th Nov., 1976 (Annexure 8).
4. At this stage the State of Bihar came forward with Bihar Sugar Undertakings (Acquisition) Act, 1976 (Act XIII of 1977) according to which various sugar mills listed in the schedule stood transferred to and vested in Government of Bihar/Corporation together with all the assets and liabilities, rights, titles, interest and obligation including any mortgage, charge or other incum-brance or lien, trust or similar obligations attaching to the undertaking. As Section 3 of the Act prescribing for the vesting of the undertaking on the appointed day will be a matter of our scrutiny and interpretation we quote the whole of the provision which reads as follows :–
“3. Vesting on the appointed day –
(1) On and from the appointed day the scheduled undertakings listed in the schedule shall stand and be deemed to have stood transferred to and vest and be deem- -ed to have vested in the Government of Bibar/Corporation together with all the assets, liabilities, rights, titles, interest and obligation including any mortgage, charge or other encumbrance or lien trust of similar obligations attaching to the undertaking.
(2) Nothing in Sub-section (1) shall require the Corporation or the undertaking so transferred to pay any amount for tlhe satisfaction of any debt mortgage, charge or other encumbrances or lien, trust or other obligations attached to the undertaking on the appointed day, and the State Government may by notification published in the Official Gazette, impose moratorium, for such period as may be specified therein us the State Government may deem fit, in favour of the Corporation or the Undertaking on such debt, mortgage, charge or encumbrances, lien, trust or obligation.”
We shall now refer to tlhe other relevant provisions of the Act. According to Section 4 the encumbrance of vesting appointment of Receiver by any Court, every lease or other arrangement whereunder any scheduled undertaking or the management thereof has been transferred to any person shall cease to have effect, and every attachment, injunction or any other order of Court etc. shall cease to have effect. Section 8 enjoins upon tihe State Government a duty to appoint an officer not below the rank of a Commissioner as the prescribed authority to perform the functions under the Act or the Rules made thereunder. The notification has since already been made under this provision in the month of March, 1978 appointing the Industrial Development Commissioner as the prescribed authority. Section 9 of the Act empowers the prescribed authority to have the powers of a Civil Court while trying suits or executing decrees under the Civil Procedure Code in respect of various specified matters such as summoning and enforcing the attendance of witnesses, discovery and production of documents including receiving evidence and executing any order, made by it, so much so vide Sub-section (4) the prescribed authority is deemed to be a Civil Court within the meaning of Section 345 of the Code of Criminal Procedure, and the proceeding before him is to be deemed to he a judicial proceeding. According to Section 10 the decision of the prescribed authority shall be final and cannot be called in question in any Court. The most crucial provision, however, is Section 16 which reads as follows :–
“Vacation of orders and abatement of proceedings– All orders, directions, writs and prohibitions issued by any Court against the undertaking shall be deemed to be vacated and of no effect and any proceeding, appeal or revision pending before any Court, Tribunal or authority against the undertaking on the appointed day shall abate.”
4-A. From perusa1 of Section 16 it is obvious that it consists of two parts. The first part vacates and makes ineffective all orders and directions etc. issued by any Court against an undertaking on conclusion of any proceeding or even if not concluded, where any or.der, direction or writ has been issued against the undertaking. The second part covers all pending cases and is wider in nature which speaks of proceedings, appeals or revisions pending not only before any Court but also before any Tribunal or authority against the undertaking on the appointed day. A question, therefore, arises as to whether the order (Annexure 4) by the Sub-Divisional Officer who was said to be acting as an authority under the Payment of Wages Act was covered by the mischief of Section 16 of the Act.
5. The answer may be found in Sec. 18 of the Payment of Wages Act where the powers of the authorities appointed under Section 15 of the Act for investigating and deciding the disputes are laid down. Section 18 of the Payment of Wages Act clearly lays down that the authority appointed under Section 15 shall have powers of a Civil Court under the Code of Civil Procedure.
6. This question, however, is not res integra so far this Court is concerned inasmuch as a Special Bench of this Court was faced with an almost similar situation as far back as 1941 in the case of Smt. Dirji v. Smt. Goalin (AIR 1941 Pat 65) where the Commissioner under the Workmen’s Compensation Act was a ‘Court’. In the same case when the matter came before a Division Bench after answering the question referred to the Special Bench it was further held that the Commissioner .was a ‘Court’ subordinate to the High Court within the meaning of Section 115 of the Code of Civil Procedure although we find a contrary view indicated in some of the cases where the Commissioner has been held to be a Persona Designata. Reference in this connection may be made to the case of Noor Ali v. Kanpur Omnibus Service Ltd. (AIR 1955 All 707) wherein it was laid down by a learned single Judge that the authority appointed under Section 15 (1) under the Payment of Wages Act is a Persona Designata and cannot be regarded as a Civil Court, nor the proceeding before him a civil proceeding. Once we reach to this conclusion that Commissioner was a Court subordinate, to the High Court, then it must be held that the order passed by the Sub-Divisional Officer under the provisions of the Payment of Wages Act as Commissioner of Wages Act against the sugar factory must be deemed to be vacated and of no effect.
7. Even assuming for the sake of argument that the order (Annexure 4) can be saved by giving a different interpretation, then in that event also its execution through the certificate proceeding before respondent No. 1 the Sub-divisional Officer, Darbhanga, acting as Certificate Officer under. the provisions of the Public Demands Recovery Act being a proceeding pending on the appointed day against the sugar factory must also abate. The difference, however, between the abatement under the first part of Section 16 and the second part would have some significance for the petitioner inasmuch as if it would abate under the first part of Sec. 16 then the petitioner, perhaps, might put it for execution before the prescribed authority as provided for under Section 9 of the Act where the prescribed authority has been given the powers of Civil Court “while trying a suit or executing a decree”. The provisions of Section 9, therefore, are indicative that suits and execution proceedings can be entertained by the prescribed authority.
8. Mr. Sharan, learned counsel appearing on behalf of respondents Nos. 2 and 3 seems to be right in his contention that the provisions contained in Section 16 were not prospective, a.nd the abatements contemplated were only with reference to the “appointed day”. He firstly contended that there was no bar for any Court, tribunal or authority etc. to entertain either a suit or a proceeding instituted subsequent to the “appointed day”. This interpretation also does not create any conflict with the scheme of Section 9 inasmuch as all the abated proceedings or orders etc. would have to be instituted/enforced before/by the prescribed authority under Section 9 i. e. if the matter was still pending at a proceeding stage meaning thereby trial stage then that trial/investigation etc. by that proceeding after its abatement will be before the prescribed authority, and order, direction etc. contemplated in the first part of Section 16 have to be obtained afresh from the prescribed authority.
9. This Court in an unreported decision which has been made Annexure 3 to the writ application had the occasion to consider Section 16 in the case of Vrajesh v. The Motihari Co-operative Development and Cane Marketing Union Ltd., (Civil Revn. no. 42 of 1979 and analogous case) in its judgment dated 5-11-1979. There the question was as to whether the suits pending for. realisation of certain amounts as price of sugar cane from two of the undertakings would also abate under Section 16 or not. In one of the cases the view was taken against the plaintiff and in the other in his favour. This Court held that under Section 16 of the Act there was automatic abatement and the Court has to pass a formal order for abatement in terms of Section 16. The only difference between that case and the present case is that there the order of abatement was passed under the second part of Section 16. Respondent No. 1, therefore, has taken a right view in passing the order of abatement of the certificate proceeding by the impugned order as contained in Annexure 1.
The remedy of the petitioner as prima facie seems to us, is to file his claim before the prescribed authority (tihe Industrial Development Commissioner) appointed under Section 8 by the State Government as referred to earlier. We, therefore, do not find any merit in this application.
11. Before parting with the case, however, we must express our concern for not making the necessary rules under the Act by the Government for the purposes of carrying out the objects of this Act. Thus, the pious intention of the legislature is not being fulfilled even when this Court had expressed its desire in the above mentioned case and it also observed for framing of the rules as quickly as possible. More than four years have since gone by and the governmental machinery has simply not taken any step to discharge its statutory obligation. This is a sorry state of affairs. When the managements of several sugar mills, an important industry for this State, were taken over and vested in the Corporation the machinery for its proper working and functioning should have taken steps long before. In order to inject a speedy action in the executive machinery of the Government we would issue a rule of mandamus by fixing a time limit of six months for framing the relevant rules under the Act (and ?) its due publication.
12. The result of the above discussions is that this application fails and is hereby dismissed but without any order for costs.