Judgment : 1. This petition is preferred by the Empress Mills, a Unit of Maharashtra State Textile Corporation, challenging the order dated 14.12.1998, passed in ID Application No. 351/88, under Section 33(c)(2) of the Industrial Disputes Act, 1947, directing the petitioner to pay Rs. 27,965/- to the respondent no. 2 towards the retrenchment compensation. During the pendency of this petition, the respondent no. 2 expired and his L.Rs are brought on record. 2. The facts leading to the case are as under; Prior to 3.10.1986, the Empress Mill was owned by the Central India Spinning, Weaving and Manufacturing Company Limited ( hereinafter referred to as the “said Company”). The said company declared lock-out in the undertaking w.e.f. 3.5.1986 and later on filed winding up proceedings under the Companies Act, 1946. Due to this action, more than 7000 permanent workers were likely to be rendered jobless from the said Company. Keeping in view the several representations received from the Trade Unions, the State Government decided to nationalize the said Company. Accordingly on 3.10.1986 an Ordinance known as the Central India Spinning, Weaving and Manufacturing Company Limited, the Empress Mills, Nagpur (Acquisition and Transfer of Undertakings) Ordinance was promulgated. Subsequently the said Ordinance was replaced by the Central India Spinning, Weaving and Manufacturing Company Limited, the Empress Mills, Nagpur (Acquisition and Transfer of Undertaking) Act, 1986 (hereinafter referred to as “the said Act”). By virtue of the provisions of the said Act, the said Company stood transferred and vested in the Maharashtra State Textile Corporation Ltd. (hereinafter referred to as the “said Corporation”). 3. On 30.10.1986, the said Corporation published an advertisement in the newspaper, the relevant portion of which is reproduced below; “Pending such investigation, a notice is hereby given that all persons who are workmen as defined by Section 2(S) of the Industrial Disputes Act, 1947 and who were in the employment of the Empress Mills, Nagpur, immediately before the appointed day i.e. 3rd October, 1986, who do not wish to be considered for appointment by the Maharashtra State Textile Corporation Ltd., and want to voluntarily resign may submit their applications in prescribed form for payment of gratuity and retrenchment compensation as prescribed under the Ordinance. He will be entitled to the gratuity and compensation for retrenchment as per the provisions of the Payment of Gratuity Act, 1972 and the Industrial Disputes Act, 1947 read with provisions of the Ordinance NO. V of 1986. Those workers who have attained the age of 60 years as on 3rd October 1986, they will be paid Gratuity only”. As a result of the aforesaid advertisement, all those persons who were the workmen as defined under Section 2(s) of Industrial Dispute Act, 1947, and were in the employment of the Empress Mills (the said Company) immediately before the appointed day i.e. 3rd October, 1986, and who did not wish to be considered for appointment by the said Corporation and wanted to voluntarily resign, were required to submit the application in the prescribed form for payment of gratuity and retrenchment compensation as prescribed under the said Ordinance. The gratuity and the retrenchment compensation was payable in accordance with the provisions of Payment of Gratuity Act, 1972, and the Industrial Disputes Act, 1947, (I.D. Act for short) read with provisions of the said Ordinance. 4. The respondent no. 2 submitted his application dated 5.11.1986 to the petitioner (said Corporation) expressing his intention not to get an employment in the said Corporation and requesting for payment of gratuity and retrenchment compensation. It is not in dispute that the respondent no. 2 was paid the amount of gratuity, however, the retrenchment compensation was denied to the respondent no. 2 Employee on the ground that he had attained the age of superannuation prior to 3.10.1986 and in terms of proviso to Section 12(4) of the said Ordinance, he was not entitled to it. Hence, to claim the retrenchment compensation, the respondent no. 2 filed ID Application No. 351/88, invoking the jurisdiction of the Labour Court at Nagpur, under Section 33(c)(2) of the I.D. Act, 1947 and the said Corporation i.e. the petitioner herein was joined as respondent. 5. Before the Industrial Court, the question was whether the respondent no. 2 was entitled to retrenchment compensation. The petitioner opposed the claim of the respondent no. 2 on the ground that the application under Section 33(c)(2) of the I.D. Act, was not maintainable as there was no relationship of employer and employee between the petitioner and respondent no. 2. 5. Before the Industrial Court, the question was whether the respondent no. 2 was entitled to retrenchment compensation. The petitioner opposed the claim of the respondent no. 2 on the ground that the application under Section 33(c)(2) of the I.D. Act, was not maintainable as there was no relationship of employer and employee between the petitioner and respondent no. 2. Reliance was placed on the provision of Section 12(1) of the said Act, to urge that unless an order of appointment is issued as contemplated therein, the relationship of employer-employee is not established and hence as per of proviso to Section 12(4)(a) of the said Act, the respondent no. 2 was not entitled to payment of compensation for retrenchment. It was the case of the petitioner that the respondent no. 2 attained the age of superannuation prior the designated date of 12.9.1988 and at any rate prior to appointed day i.e. 3.10.1986 and was, therefore, not in employment of Empress Mills (the said Company) immediately before the appointed day i.e. 3rd October, 1986 as contemplated by notice dated 31.10.1986. According to the petitioner, there was no preexisting right which could be enforced in the proceedings under Section 33(c)(2) of the I.D. Act. 6. The Industrial Court rejected the argument of the petitioner that there was no relationship of the employer-employee on the ground that undisputedly the gratuity amount was paid to the respondent no. 2 which is an instance showing the relationship of the employer-employee between the petitioner and the respondent no. 2. The Industrial Court also rejected the argument of the petitioner that in terms of proviso to Section 12(4)(a) of the said Act, the services of the respondent no. 2 stood terminated on his superannuation before the designated date i.e. 12.9.1998 on the ground that such was not the requirement of the notice dated 31.10.1986 published in the newspaper. On the basis of the school leaving certificate Exh.26 produced on record by the respondent no. 2, it was held that the date of birth of the respondent no. 2 was 10.12.1926 and he attained the age of superannuation of 60 years on 10.12.1986 i.e. subsequent to appointed day of 3.10.1986. It was held that the services of the respondent no. 2 could not be treated to have been terminated on superannuation on or before 3.10.1986. 2, it was held that the date of birth of the respondent no. 2 was 10.12.1926 and he attained the age of superannuation of 60 years on 10.12.1986 i.e. subsequent to appointed day of 3.10.1986. It was held that the services of the respondent no. 2 could not be treated to have been terminated on superannuation on or before 3.10.1986. The Industrial Court also rejected the argument advanced by the petitioner that the respondent no. 2 did not take any steps to get the date of birth corrected in the record of the said Corporation which showed only his year of birth as 1926, inspite of the opportunity being given to him to correct it. The Industrial Court held that this fact can be proved before the Industrial Court and the same was established by the respondent no. 2 by producing school leaving certificate at Exh. 26. With these findings, the Industrial Court has allowed the application under Section 33(c)(2) by its order dated 14.12.1998 directing the petitioner to pay retrenchment compensation of Rs.27,965/-. 7. At the outset, it is made clear that even without considering the correctness of the finding of the Industrial Court that the date of birth of the respondent no. 2 was 10.12.1926 on the basis of the school leaving certificate produced at Exh.26, I can proceed with the matter by assuming that the respondent no. 2 attained the age of superannuation on 10.12.1986 i.e. subsequent to appointed day of 3.10.1986. Hence the said finding is treated as final. 8. It is not disputed that the jurisdiction of the Labour Court under Section 33(c)(2) of the I.D. Act is available only if the relationship of employer and employee is admitted or established. The first question which, therefore, falls for consideration is whether there subsisted relationship of employer and employee between the petitioner and the respondent no. 2 so as to invoke the provisions of Section 33(c)(2) of the I.D. Act. Though Shri Puranik, the learned counsel appearing for the petitioner has pointed out that the learned Single Judge of this Court in his decision reported in 1993 Lab.I.C.2508; Jagannath Bhagwandas Shrivastav and ors vrs. 2 so as to invoke the provisions of Section 33(c)(2) of the I.D. Act. Though Shri Puranik, the learned counsel appearing for the petitioner has pointed out that the learned Single Judge of this Court in his decision reported in 1993 Lab.I.C.2508; Jagannath Bhagwandas Shrivastav and ors vrs. Hawrish Thadani and another, has taken a view that this question cannot be gone into by the Industrial Court under Section 33(c)(2) of the I.D. Act, he has very fairly pointed out that the Division Bench of this Court in its decision reported in 2008 III CLR 623; Central Group and ors vrs. Narayan Gangaram Patil through United Mazdoor Union; has taken a view that the question whether the applicant is a workman or not within the meaning of Section 2(s) of the I.D. Act and where there subsist a relationship of employer and employee can be gone into as an incidental issue while deciding the application under Section 33(c)(2) of the I.D. Act. In view of this, no jurisdictional error can be found when the Industrial Court has decided the issue of relationship of employer and employee. 9. The question whether the view taken by the Industrial Court in this case that there subsisted such relationship in the present case is correct or not, is to be gone into. In this respect reliance is placed by Shri Puranik upon the provisions of Section 12 (1) (3) and (4) of the said Act. 9. The question whether the view taken by the Industrial Court in this case that there subsisted such relationship in the present case is correct or not, is to be gone into. In this respect reliance is placed by Shri Puranik upon the provisions of Section 12 (1) (3) and (4) of the said Act. Hence the said provisions are reproduced below- 12.(1) Where services of a person who is a workman within the meaning of the Industrial Disputes Act, 1947, and who has been, immediately before the appointed day, employed in the undertaking, are, in the opinion of the Corporation necessary having regard to the requirements of the units restructured as a result of reorganization of the undertaking, he shall become, from the date of his appointment by the Corporation, an employee of the Corporation and shall hold office or service in the Corporation with the same rights and privileges as to pension, gratuity and other matters as would have been admissible to him if the rights in relation to the undertaking had not been transferred to, and vested in, the Corporation and continue to do so unless and until his employment in such Corporation is duly terminated or until his remuneration and terms and conditions of employment are duly altered by the Corporation. (2)... (3) (a) The services of every person employed by the proprietor before the appointed day shall stand terminated - (i) on the designated date if such person is not employed before that date by the Corporation under sub section (1) or (2), and (ii) on the date of his appointment if such person is employed before the designated date by the Corporation under sub section (1) or (2), (b) A person whose services stand terminated under sub-clause (i) of clause (a) shall not be entitled to claim employment in the Corporation as of right. (4) (a) Every person whose services stand terminated under sub-clause (i) of clause (a) of sub section (3) shall be entitled to— (i) payment of gratuity and of compensation for retrenchment or closure in accordance with the provisions of the Payment of Gratuity Act, 1972 and the Industrial Disputes Act, 1947 if he is a workman within the meaning of the latter Act, and (ii) payment of gratuity if he is not such a workman : Provided that, no person whose services are terminated on his superannuation on or before the designated date, shall be entitled to payment of compensation for retrenchment. (b) Notwithstanding any contained in Chapter-VI and notwithstanding that the liability for payment of gratuity and compensation for retrenchment or closure under clause (a) is that of the proprietors such liability shall be discharged by the State Government or the Corporation, according to the order of priorities mentioned in the Schedule and on discharge of such liability by the State Government or the Corporation the proprietors shall stand discharged to the extent of the liability so discharged. 10. Section 12 reproduced above deals with the provisions relating to employees of the proprietors i.e. the said Company (erstwhile employer). When sub-section (1) of Section 12 refers to a workman, it refers to a character of such person in the employment of the erstwhile employer (the said Company) as workman, immediately before the appointed day i.e. 3.10.1986 and not to the relationship of the employer and employee between such person and the said Corporation. It is not disputed that the respondent no. 2 was a workman within the meaning of Section 2(s) of the I.D. Act, who was employed in the said Company which was transferred to the said Corporation under the said Act. 11. In order to become such workman as an employee of the said Corporation, what is essential under sub-section (i) of Section 12 of the said Act, is the issuance of an order of appointment by the said Corporation, upon forming an opinion that it is necessary to employ such person having regard to the requirement of the Unit restructured as a result of reorganization of the undertaking. Undisputedly, such an order of appointment as contemplated by sub-section (1) of Section 12 of the said Act has not been issued in favour of the respondent no. 2 by the said Corporation. Undisputedly, such an order of appointment as contemplated by sub-section (1) of Section 12 of the said Act has not been issued in favour of the respondent no. 2 by the said Corporation. On the contrary, the respondent no. 2 has expressed his intention that he does not want to get an employment in the said Corporation, in his application dated 5.11.1986 submitted to the said Corporation in response to the public notice dated 30.10.1986, inviting such willingness. In view of this, neither the respondent no. 2 intended to become an employee of the said Corporation, nor he automatically became an employee of the said Corporation by virtue of the said Act. Such is also not the finding recorded by the Industrial Court in the order impugned. Thus, there was no relationship of the employer and employee established between the petitioner and the respondent no. 2. 12. Bare reading of sub-section (3) and (4) of Section 12 reproduced above, shows that every person whose services stands terminated under sub-clause (i) of clause (a) of sub-section (3) is entitled to payment of gratuity and compensation for retrenchment in accordance with the provisions of the Payment of Gratuity Act, 1972 and the Industrial Disputes Act, 1947. The proviso to sub-section (4) of Section 12 of the said Act, however, carves out an exception and disentitles every such person to the payment of retrenchment compensation, whose services are terminated on his superannuation, on or before the designated date. In this case, the designated date as per the notification issued under Section 12 of the said Act, is 12.9.1988. 13. On facts, though the respondent no. 2 can be termed as a person whose services stood terminated under sub-clause (i) of clause (a) of sub-section (3) of Section 12 of the said Act, he is not entitled to payment of retrenchment compensation, as his services stood terminated on attaining the age of superannuation on 10.12.1986 i.e. before the designated date of 12.9.1988. Hence, he was governed by the proviso to sub-section (4) of Section 12 of the said Act and was not entitled to retrenchment compensation. The Industrial Court has held that the public notice dated 31.10.1986 makes all those workers who have attained the age of 60 years as on 3rd October, 1986, entitled to payment of gratuity only and hence the respondent no. The Industrial Court has held that the public notice dated 31.10.1986 makes all those workers who have attained the age of 60 years as on 3rd October, 1986, entitled to payment of gratuity only and hence the respondent no. 2 could not have been denied the retrenchment compensation as he attained the age of 60 years on 10.12.1986 i.e. after the appointed day of 3rd October 1986. Shri Puranik, the learned counsel appearing of the petitioner, submits that it was a mistake in giving the date of 3rd October, 1986 and it should have been the designated date of 12.9.1988 in the public notice dated 31.10.1986. It is not possible to accept such argument. The public notice is dated 31.10.1986 and the notification for designated date was issued subsequently on 12.9.1988. On the date when public notice was issued, the notification of designated date was not subsisting and hence, there was no question of any such mistake. Be that as it may, the respondent no. 2 was not entitled to such compensation under the statutory provision of proviso to sub-section (4) of Section 12 of the said Act and there cannot be an estoppel against this statute. Hence, the finding of the Industrial Court that the respondent no. 2 was entitled to retrenchment compensation cannot be sustained. 14. The Industrial Court has held that the respondent no. 2 has been paid with the gratuity by the said Corporation and that is an instance showing the relationship of the employer and employee between the petitioner and the respondent no. 2. Such finding of the Industrial Court cannot be accepted. The payment of gratuity under the Payment of Gratuity Act, 1972, is the liability of the employer. The employer of respondent no. 2 in this case was the said Company and not the petitioner Corporation. The entitlement of the respondent no. 2 for the payment of gratuity from the petitioner Corporation flows not from the relationship of the petitioner and the respondent no. 2 as employer and employee, but it flows from the statutory provisions of Section 12(4)(a) and (b) of the said Act reproduced above. Under clause (b) of sub-section (4) of Section 12 of the said Act, it is the liability of the proprietors i.e. the said Company which is being statutorily discharged by the petitioner, the said Corporation. 2 as employer and employee, but it flows from the statutory provisions of Section 12(4)(a) and (b) of the said Act reproduced above. Under clause (b) of sub-section (4) of Section 12 of the said Act, it is the liability of the proprietors i.e. the said Company which is being statutorily discharged by the petitioner, the said Corporation. However, mere statutory liability to discharge such payment is not enough to attract the provisions of Section 33(c) (2) of the I.D. Act. There is no other evidence on record to establish such relationship. In the absence of entitlement on the basis of relationship of employer and employee, the jurisdiction of the Labour Court under Section 33(c)(2) is not available. 15. Since, it has been held that there subsisted no relationship of employer and employee between the petitioner and the respondent no. 2 and the payment of gratuity is not out of such relationship but to discharge the statutory obligation created by subsection (4) of section 12 of the said Act, the Industrial Court had no jurisdiction under Section 33(c)(2) of the I.D. Act, to entertain and decide the same. The order passed by the Industrial Court is without jurisdiction and hence cannot be sustained. 16. In the result, the petition is allowed. The order dated 14.12.1998 passed by the Labour Court in I.D Application No. 351/88 under Section 33(c)(2) of the I.D. Act is hereby quashed and set aside and the Application No. 351/88 filed by the respondent no. 2 stands dismissed, with no orders as to costs. 17. In view of the order dated 28.09.2000 passed by this Court, the petitioners had deposited an amount of Rs.27,000/-in this court. In view of the fact that the writ petition has been allowed, the petitioner is permitted to withdraw the said amount along with interest accrued thereon.