G.P.Mathur, J. - (1.) The question which requires consideration here is whether a special appeal would lie against the judgment and order of a single Judge in a writ petition under Article 226 of the Constitution wherein an order passed by Deputy Labour Commissioner under clause (LL) of the standing orders governing conditions of employment of workmen in Vaccum Pan Sugar Factories was subject-matter of challenge.
(2.) Surya Narain Shahi, respondent No. 2 was appointed as cane-observer in the appellant Pratappur Sugar and Industries Limited on 25.10.1956 and in the service book, his date of birth was entered as 16.12.1935. He became eligible to become member of Provident Fund Scheme and in P.F. Form II, he made a declaration on 10.10.1957, that his date of birth was 16.12.1935. On 12.11.1992, he made a representation to the appellant, that the entry regarding his date of birth be changed from 16.12.1935 to 1.5.1939, which was recorded as his date of birth in his High School Certificate. No action was, however, taken on the said representation. The appellant served a notice upon respondent No. 2 that he would attain the age of superannuation (60 years) on 16.12.1995 and, therefore, he would retire from service after expiry of period of notice. The respondent No. 2 then moved an application before the Regional Deputy Labour Commissioner, Gorakhpur, praying that the retirement notice be set-aside and his date of birth should be treated as 1.5.1939. The application was registered as S.O. Case No. 2 of 1996 and the parties adduced oral and documentary evidence in support of their respective cases. The Deputy Labour Commissioner by his order dated 17.10.1997 set aside the retirement notice and further directed that the date of birth of respondent No. 2 shall be treated as 1.5.1939. The appellant then filed Civil Misc. Writ Petition No. 14880 of 1998 challenging the aforesaid order, but the same was dismissed by a learned single Judge on 28.4.1999. The present special appeal has been filed assailing the Judgment and order of the learned single Judge.
(3.) Sri Shyam Narain, learned counsel for respondent No. 2 has raised a preliminary objection that while exercising Jurisdiction under clause (LL) of the standing orders, the Deputy Labour Commissioner functions as a Tribunal and, therefore, no special appeal would be against the judgment and order of the learned single Judge in view of Chapter VIII, Rule 5 of the Rules of Court. Sri P.K. Mukherji, learned counsel for the appellant has contended that the Deputy Labour Commissioner docs not function as a Tribunal and the order passed by him is only in the nature of an administrative order and, therefore the present special appeal is maintainable.;