Rakesh Tiwari, J. - (1.) -This writ petition arises out of an order dated 19.8..2002, passed by Deputy Labour Commissioner, Agra Region, Agra, refusing to make reference of the industrial dispute raised by the petitioner with regard to his termination of service.
(2.) THE petitioner was appointed on 11.6.1971 as Draftsman. THEreafter, he was promoted to the post of Foreman. His services were allegedly terminated without compliance of provisions of U. P. Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') w.e.f. 4.9.2001. It is also alleged that when he approached the employers for settlement of dispute, he received no response and as such, he moved an application under Section 2A of the Act before the Conciliation Officer/ Deputy Labour Commissioner, Agra Region, Agra on 20.9.2001. The employers-respondent No. 3 M/s. Hind Lamps Ltd., Shikohabad, district Firozabad, contested the conciliation proceeding and filed written statement, inter alia, stating that the petitioner was absent w.e.f. 7.6.2000 to 24.2.2001, without any information or approval of leave by the management. It was also stated that the nature of duties of the petitioner was supervisory and administrative and he was drawing salary of Rs. 6,290 per month in addition to payment of medical claim, group insurance, L.T.C. etc. According to the employers, several letters were written to the petitioner at his permanent home address recorded with them, and also at the address of the quarter allotted to him at the factory premises requesting him to join his duties but all of them were received back unserved. Since he was absenting himself without information or prior permission, and was engaged in other business, the management treated him as voluntarily retired. Lastly, it was the case of the employers that as the petitioner is not a workman within the meaning of the Act, provisions of retrenchment are not applicable to him. In support of their case regarding nature of duties, power and status of the petitioner, including a comparative chart of duties of workman and Foreman establishing that the services of the petitioner were purely supervisory and administrative, in nature, and he was also exercising administrative functions such as granting leave etc. It was evident from the documents filed by the employers before the Deputy Labour Commissioner, which have also been filed as Annexures-2 to 5 to the counter-affidavit that the service conditions of Workman and Foreman were altogether different and being governed by different service rules. The workmen are governed by the standing orders and Foreman is governed by the separate service rules for Foreman and Accountant Cadre Employees. From perusal of these documents it is evident that there is marked difference in their nature of duties, powers, payable allowances and age of superannuation, etc. The documentary evidence etc., filed by the employers regarding powers, pay-scale duties and terms of employment were not rebutted by the petitioner by any evidence in support of his case that he was not exercising power of Foreman etc., but was discharging duties of a workman. The Deputy Labour Commissioner, after hearing the parties passed the impugned order dated 19.8.2002 holding that the dispute cannot be referred to the labour court for the reason that the petitioner does not fall within the ambit of the definition of 'workman' as contained in Section 2 (z) of the Act. The order dated 19.8.2002 is quoted below for ready reference : ...[VERNACULAR TEXT OMMITED]...
(3.) THE definition of workman contained in Section 2 (z) of the Act is as under : "(z) 'Workman' means any person (including an apprentice) employed in any industry to any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person : (i) Who is subject to the Army Act, 1050 or the Navy (Discipline) Act, 1934 ; or (ii) Who is employed in the police service or as an officer or other employee of a prison ; or (iii) Who is employed mainly in a managerial or administrative capacity ; or (iv) Who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature." The order of the Deputy Labour Commissioner refusing to refer the dispute has been assailed by the petitioner on the ground that a public duty is cast on the State Government to refer the dispute for adjudication in exercise of power under Section 4K of the Act. Deputy Labour Commissioner has no authority of law to adjudicate as to whether a person is workman or not and he ought to have referred the dispute to labour court instead of refusing to refer the same holding that the petitioner was not a workman ; that refusal to refer the dispute has resulted in depriving the petitioner of his legitimate right of review of his case under Section 11 of the Industrial Disputes Act (Central), 1947, as well as equivalent provisions of the Act, as such, the impugned order dated 19.8.2002, passed by the Deputy Labour Commissioner is absolutely illegal and arbitrary.;