JUDGMENT [ENTITY], J.
1. By this petition, filed under [SECTION] of the [ACT] the petitioners are challenging the legality of the order, dated June 28, 1985 passed by the Presiding Officer, 6th Labour Court, Bombay in 31 applications filed by the workmen under [SECTION] of the [ACT] (hereinafter referred to as 'the Act'), and awarding diverse amounts to the workmen. The facts giving rise to filing of these applications lie in a very narrow compass and are required to be briefly stated to appreciate the grievance of the petitioners.
2. The petitioner Company is a public sector undertaking. Prior to Jan. 24, 1976, a Sterling Company incorporated in the United Kingdom, known as Burmah-Shell Oil Storage & Distributing Company of India Ltd. was operating in India For marketing of petroleum products of the Company. Another company known as Burmah Shell Refineries Ltd. registered under the. [ACT] was prior to Jan. 24, 1976 carrying on business of refining of crude oil. Both the aforesaid companies were nationalised with effect from Jan. 24, 1976. The President of India and his nominees purchased all the shares of Burmah Shell Refineries Ltd., while the other Company Burmah-Shell Oil Storage & Distributing Company of India Ltd. was taken over by an Act passed by the Parliament and known as the [ACT] (hereinafter referred to as 'the [ACT]'). By virtue of provisions of [SECTION] of the [ACT], the Central Government vested the right, title and interest and liabilities of Burmah Shell Oil Storage & Distributing Company of India Ltd. in relation to its undertakings in India, in the Government Company. The name of the consolidated Companies was altered to Bharat Petroleum Corporation Ltd. Subsequent to the nationalisation, the petitioner became an integrated, refining and marketing company, having one Board of Directors, a consolidated balance-sheet and profit and loss account etc. Upon nationalisation, the establishments of the two Companies were merged and run as a single unit, and according to the petitioner, the old establishments lost their separate identity.
3. Prior to January 24, 1976, the service conditions of clerical workmen of Burmah-Shell Refineries Ltd. recruited prior to that date were governed by a settlement dated Oct. 31, 1973 between the Burmah-Shell Refineries Ltd. and the clerical workmen. The respondent Nos. 2 to 32 joined the service of the petitioner after January 24, 1976. The petitioner, being a Government Company, is subject to the guidelines, instructions and directives from the Government of India, especially where substantial financial commitments are involved. The Government of India had indicated that the petitioner should not perpetuate the high emoluments extended to various categories of employees by the erstwhile foreign company and the petitioner should evolve emoluments more in line with those prevailing in public sector companies. Pursuant to these directions, the petitioner evolved emoluments and service conditions on the lines of other public sector companies in the case of its management staff and obtained the Government's approval to the same and extended it to all the employees appointed subsequent to January 24, 1976. One of the conditions of service was that the employees were transferable from one establishment to another.
4. Respondent Nos. 2 to 32 filed a complaint before the Industrial Court alleging that the petitioner had engaged in an unfair labour practice of employing respondents 2 to 32 as temporary and denying them status and privileges of the permanent employees. The Industrial Court held that the Company had engaged in unfair labour practice and directed that respondents 2 to 32 should be made permanent with effect from two years after the date of their initial appointment. The petitioner challenged the order of the Industrial Court by filing [CASE NUMBER] in this Court, and by an order dated March 11, 1983 the order of the Industrial Court was set aside, but this Court in its inherent jurisdiction directed the petitioner to make respondents 2 to 32 permanent with effect from two years after the date of their initial appointment. Respondents 2 to 32 were given liberty to get the wage scales and conditions of service determined in separate appropriate proceedings as there were serious disputes between the parties as to whether the settlement dated October 31, 1973 was applicable to the clerks appointed subsequent to Jan. 24, 1976.
Respondents 2 to 32 thereafter filed applications under [SECTION] of the Act before the Labour Court claiming that they were entitled to wages, dearness allowance and various other conditions of service as per the settlement dated October 31, 1973. The applications filed by respondent 2 to 32 are in identical terms. The applications were resisted by the petitioner contending that respondents 2 to 32 did not have any existing right to the benefits claimed by them and which right could only be determined by adjudication proceedings and not by filing applications under [SECTION] of the Act. The petitioner also claimed that the petitioner is not a successor-in-interest of the Burmah-Shell Refineries Ltd., and in any event the petitioner has become an integrated, refining and marketing company upon nationalisation and the separate identity of Burmah-Shell Refineries Ltd. was lost after merger with the other unit. The Labour Court came to the conclusion that applications were maintainable and the workmen have an existing right. It was further held that petitioner is a successor-in-interest of Burmah-Shell Refineries Ltd., and the original unit did not lose its identity even after merger. On the strength of these findings the Labour Court came to the conclusion that each of the respondents was entitled to the advantage of the settlement and the petitioner was directed to pay the diverse amounts to each of the workmen. The order of the Labour Court is under challenge.
5. Shri [ENTITY], learned counsel appearing on behalf of the petitioner, submitted that the Labour Court travelled beyond its jurisdiction by adjudicating questions like whether the petitioner is a successor of Burmah-Shell Refineries Ltd. and whether the identity of the original Company was lost due to the merger. Shri [ENTITY] urged that the jurisdiction of the Labour Court in an application under [SECTION] of the Act is very limited and it is not permissible for the Labour Court to adjudicate issues which require detailed investigation and which must be left for determination of the Industrial Court in reference under [SECTION] of the Act. Shri [ENTITY], learned counsel appearing on behalf of respondents 2 to 32, on the other hand urged that the question of jurisdiction, though specifically raised before the Labour Court, is not taken in the writ petition, and therefore, it should be held that the petitioner has given up the said contention. Shri [ENTITY] further urged that the question as to whether the petitioner is successor-in-interest of Burmah-Shell Refineries Ltd. and the question as to whether the identity of the original unit has continued or not are merely incidental questions and can be well determined by the Labour Court. Shri [ENTITY] further submitted that the defence raised by the petitioner to the claim made by the workmen was mala fide and therefore it was open for the Labour Court to adjudicate upon the questions. Shri [ENTITY] very specifically stated that workmen are not seeking relief on the principle of 'Equal pay for same work'.
6. It is now well-settled that the proceeding under [SECTION] is a proceeding generally in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money. The calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or otherwise, duly provided for. Since the proceeding under [SECTION] of the Act is in the nature of an executive proceeding, it should follow that an investigation of the nature of determination of the right to relief or the corresponding liability of the other side is normally outside its scope. Shri [ENTITY] submitted that the petitioner specifically raised the question of jurisdiction in the written statement filed before the Labour Court and the perusal of the impugned order makes it clear that the Labour Court was conscious of the issue of jurisdiction raised by the petitioner. The contention of Shri [ENTITY] that the petitioner had not specifically raised the issue of jurisdiction in the writ petition and therefore this Court should not permit the petitioner to raise such question cannot be accepted. Perusal of paragraph 14(iii) of the Petition does indicate that the petitioner resisted the proceedings and challenged the impugned order on the found that the Labour Court lacked jurisdiction to adjudicate various questions. Apart from this aspect, as the question of jurisdiction goes to the root of the matter, it is not permissible to shut out the parties from agitating it at the hearing. Shri [ENTITY] referred to the decision of the Supreme Court , [PRECEDENT]., but that decision is of no assistance, because the Supreme Court did not lay down that question of jurisdiction should not be permitted to be raised when it was specifically raised before the lower authorities.
Shri [ENTITY] submitted that the question as to whether the petitioner is a successor in-interest of Burmah-Shell Refineries Ltd. was one which required detailed investigation and should not have been determined by the Labour Court in [SECTION] proceedings. The Labour Court has observed that the petitioner is a successor in interest of the original company because the whole running business was purchased by the Central Government and so also the goodwill. The Labour Court further held that the same business was carried on by the Government Company and the same staff continued to work, and the address of the Company was also not changed and these facts indicate that the petitioner was successor-in-interest. Shri [ENTITY] submitted that apart from the fact that even factually the observations made by the Labour Court are incorrect, it is well settled by the Supreme Court that the question whether an authority is successor-in-interest or not is not open for determination in [SECTION] proceedings. The learned counsel referred to the decision of the Supreme Court , [PRECEDENT]. In the case before the Supreme Court, the limited company known as the Rivers Steam Navigation Co. Ltd. closed its business on May 3, 1967 and the undertaking was transferred in favour of Central Inland Water Transport Corporation Ltd. The Corporation made a large number of fresh appointments but could not absorb all the existing staff. An application was made under [SECTION] of the Act on behalf of the employees and in those proceedings question was raised as to whether the Corporation was successor-in-interest. The Supreme Court held that it is not open for the Labour Court in proceedings under [SECTION] to determine that question. It was observed:
"The several problems raised by the above contentions involve in effect a major industrial dispute, an investigation into which is quite outside the scope of [SECTION]. Only on a detailed investigation would it be possible to determine whether the workmen had any right to a benefit and, if so, the Corporation was liable to satisfy the same. The other question which would be necessary to decide is whether the Corporation was a successor of the defunct Company. As pointed out in [PRECEDENT] [PRECEDENT] already referred to the question whether a transferee of an undertaking is a successor or not involves consideration of several factors as set out at pages 737 to 738 of the report. Such an investigation would clearly be quite outside the speedy individual remedy contemplated by [SECTION] In any event, the question is not one which the Labour Court could be expected to deal with in a proceeding Under [SECTION] the principal business whereunder is just computation of a benefit demonstrably existing. In short, the problems raised are appropriate for determination in an Industrial Dispute on a reference Under [SECTION] of the Act and cannot be regarded as merely "incidental" to the computation Under [SECTION]."
The Supreme Court further observed that if the disputes were referred to the Industrial Tribunal under [SECTION], then the Tribunal would necessarily go into the detailed investigation of the questions which could not be agitated under [SECTION] of the Act. In view of the dictum laid down by the Supreme Court, it is obvious that it was not permissible for the Labour Court to grab the jurisdiction and determine and adjudicate the issue as to whether the petitioner is a successor-in-interest of the Burmah Shell Refineries Ltd.
7. Shri [ENTITY] then submitted that the question as to whether the identity of Burmah-Shell Refineries Ltd. was lost on its merger with the other company and whether even assuming that the petitioner is a successor-in-interest, the liability flowing from the settlement of the year 1973 is binding on the petitioner or not, could not have been adjudicated by the Labour Court. There is considerable merit in the submission of the learned counsel. Shri [ENTITY] relied upon the decision of this Court , [PRECEDENT]. While dealing with the provisions of [ACT], this Court held that after taking over various establishments of the assurance companies doing life insurance business, the establishment run by the Life Insurance Corporation is a unified establishment and the old establishments have not retained their identity, and where there is a merger of various establishments, it is not possible to say that any old establishment is continued. The Court further held:
"It is the scheme of the [ACT] that any awards or settlements arrived at thereunder would bind not merely the then employers, but their successors, and would bind not merely the then employees but future employees too. This binding nature of the settlements and awards continues only so long as it can be said that the Establishment continues. With the extinction of the establishment the binding nature of the settlements and awards would cease."
Shri [ENTITY] submitted that the Burmah-Shell Refineries Ltd. was merely carrying out the refining work and after its merger with the other Company, which was dealing with distribution, it is not possible to suggest that the identity of the old establishment has been retained. In my judgment, the Labour Court while exercising jurisdiction under [SECTION] of the Act was clearly in error in exercising powers to adjudicate whether the identity of Burmah-Shell Refineries Ltd. has continued subsequent to the take over and the merger of the two companies. Such question must be left or determination in an industrial dispute to be raised under [SECTION] of the Act.
8. Shri [ENTITY] submitted that the decision of the Supreme Court in the case of Central Inlana Water Transport Corporation Ltd. (supra) should not be relied upon De-cause the decision turns on own its facts. The learned counsel urged that the question as to whether the petitioner is a successor-in-interest of Burmah Shell Refineries Ltd. and whether Burmah Shell Refineries Ltd. has retained its separate identify after merger could be determined and adjudicated by the Labour Court, as they are merely incidental questions. Reliance was placed by Shri [ENTITY] on the decision of the Supreme Court reported in : [PRECEDENT], [PRECEDENT]. It cannot be disputed that the incidental questions could be well determined by the Labour Court while computing the monetary benefits available to the workmen, but under the guise of determination of incidental questions it is not permissible to adjudicate on issues which clearly lie beyond the jurisdiction of the Labour Court. The Supreme Court in the case of Central Inland Water Transport Corporation Ltd. has clearly laid down the limits of determining incidental questions. That case of the Supreme Court directly deals with the question as to whether the authority is a successor in interest could be determined in proceedings under [SECTION] and it is futile for Shri [ENTITY] to suggest that the decision of the Supreme Court should be by-passed on a specious plea that the decision turns on its own facts. In my judgment, it is not permissible to ignore the decision of the Supreme Court in such a manner.
Shri [ENTITY] then submitted that in the year 1975 the Supreme Court has laid down the test for determining the question as to whether the authority is successor-in-interest of the transferor and therefore it was open for the Labour Court to proceed to adjudicate that question by taking into consideration the relevant factors. Reference was made to the decision of the Supreme Court reported in [PRECEDENT], The Central Inland Water Transport Corporation Ltd. v. Their Workmen. The submission that the test for determining whether an authority is a successor-in-interest was laid down for the first time in the year 1975 is wholly misconceived. In the decision referred to above, the Supreme Court referred to its earlier decision , [PRECEDENT], where Mr. Justice [ENTITY], as he then was, set out what could be the relevant factors to be borne in mind while deciding the question as to whether the purchaser can be said to be successor-in-interest of the vendor in the performance of industrial adjudication. The learned Judge made it very clear that it would be unreasonable to suggest that any of the factors set out therein would be decisive of the matter and the decision must ultimately depend upon the evaluation of all the relevant factors. The decision of the learned Judge was available and referred to by the Supreme Court while deciding the case of Central Inland Water Transport Corporation Ltd. in the year 1974. In my judgment, merely because the Supreme Court has laid down the relevant factors which ought to be taken into consideration, it cannot give charter to the Labour Court to adjudicate such questions in proceedings under [SECTION] of the Act.
The submission of Shri [ENTITY] that the issues raised by the petitioner were not bonafide and therefore the Labour Court was justified in examining the issues and adjudicate it against the petitioner cannot be accepted. In the first instance it is futile to urge that the questions raised by the petitioner are mala fide. The questions raised by the petitioner require detailed investigation and cannot be branded as mala fide merely because respondents 2 to 32 did not like to approach the Industrial Tribunal on merits. The petitioner is a Government Company and respondents 2 to 32 were appointed after the date of take-over and the merger and the action of the Government in providing for the service conditions and the wage scale on par with other public sector undertakings can by no stretch of imagination be termed as mala fide. Secondly, it is not permissible for the authority lacking jurisdiction to grab the same by treating the substantial contention raised by the petitioner as mala fide.
9. Shri [ENTITY] relied upon the observations made by Chief Justice [ENTITY] in a judgment delivered on December 20, 1984 in [CASE NUMBER] filed before the Division Bench of this Court to claim that the appropriate proceedings for seeking relief was application under [SECTION] of the Act. Bharat Petroleum Process Technicians and Analysts' Union had filed [CASE NUMBER] in this Court seeking a writ of mandamus for directing the State of Ma-harashtra and the Commissioner of Labour of Maharashtra to carry out their statutory obligations to file complaint as contemplated by [SECTION] of the Act against the petitioner. The complaint was that the petitioner had committed wilful breach of the settlement and refused to apply the same to temporary workmen and denied the benefits of the settlement without any reason. The petition was summarily dismissed and the appeal filed by the Union also met with the same fate. While dismissing the appeal, the learned Chief Justice observed that there is a valid dispute as to whether there was a subsisting settlement binding on the Company and which entitles the temporary workmen to the benefit of the settlement. The learned Chief Justice observed that it is open for the appellants to agitate the point by way of appropriate petition under [SECTION] of the [ACT] and secure such benefit as they are entitled to. From these strong observations it cannot be concluded that Division Bench of this Court has held that the proper remedy for respondents 2 to 32 was to rile an application under [SECTION] of the Act. In my judgment, the reliance on the decision of the Division Bench is wholly misconceived. The applications filed by respondents 2 to 32 are clearly not maintainable and it was not open for the Labour Court to adjudicate on disputed questions.
In view of this finding, it is not necessary to examine the third contention of Shri [ENTITY] about the effect and the consequence of settlement dated June 17, 1982 between the petitioner and the workmen.
10. Accordingly, petition succeeds and the rule is made absolute and the order dated June 28, 1985 passed by the Presiding Officer, 6th Labour Court, Bombay, is set aside and the 31 applications filed by respondents 2 to 32 are dismissed. In the circumstances of the case there will be no order as to costs.