- (1.) THE petitioner was appointed as Assistant Project Engineer (Civil) in the pay scale of Rs. 550-1200 temporarily on probation for a period of two years by order December 7, 1976 of the Chief Executive Officer, New Okhla Industrial Development Authority. Subsequently on 22nd December, 1979 he was appointed Project Engineer (Civil) in the pay scale of Rs. 800/-1450)-. On completion of the period of probation this was regularised by order dated 8th April, 1982. On 19th December, 1983 the services of the petitioner were terminated on payment of 3 months' pay in lieu of notice. THE petitioner has sought the writ of certiorari to quash this order and also mandamus directing the respondent to continue to treat him as Project Engineer (Civil) and entitled to all benefits as such.
(2.) SRI S. S. Bhatnagar learned counsel for the petitioner urged that the petitioner being a 'workman' as defined in the U. P. Industrial Disputes Act, 1947 is excluded from the purview of the U.P. Public Services (Tribunals) Act, 1976 vide Sec. 1(4) (c) thereof and hence he cannot agitate the matter before the Public Services Tribunal. In para 4 of his supplementary affidavit the petitioner has specified his duties as under: - "Overall responsibility for constructions and maintenance of buildings, roads, sheds and other constructions as also design, construction and maintenance." From Sec. 2(z) of the U. P. Industrial Disputes Act, 1947 referred to by the petitioner it would appear that the expression 'workman' does not include a person employed in any industry "Who, being employed in a supervisory capacity, draws wages exceeding Rs. 500/- per mensum 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."
(3.) THE submission for the petitioner is that the order of termination is bad in law because it is not in conformity with Sec. 6-N of the U. P. Industrial Disputes Act, 1947. We assume without deciding, as Sri Bhatnagar the learned counsel contends, that the petitioner is a 'workman'. It would follow that he cannot agitate the matter before the Public Service Tribunal, but there appears nothing in that event to preclude him from raising an industrial dispute and seeking alternative remedy before the Tribunal provided under the U. P. Industrial Disputes Act, 1947 which is both adequate and efficacious. It was argued that the petitioner cannot approach the Tribunal directly and that the State Government might not on being approached make the reference. Similar argument raised in the Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay, (1976) 1 SCC 496 case was repelled by the Supreme Court observing :- "If the refusal is not sustainable inlaw, appropriate directions can be issued by the High Court in exercise of its writ jurisdiction. But it does not follow from all this that the remedy provided under the Act is a misnomer. Reference of industrial disputes for adjudication in exercise of the power of the Government under Sec. 10 (1) is so common that it is difficult to call the remedy a misnomer or insufficient or inadequate for the purpose of enforcement of the right or liability created under the Act. The remedy suffers from,some handicap but is well compensate don the making of the reference by the wide powers of the Labour Court or the Tribunal. The handicap leads only to this conclusion that for adjudication of an industrial dispute in connection with a right of obligation under the general or common law and not created under the Act, the remedy is not exclusive. It is alternative. But surely for the enforcement of a right or an obligation under the Act the remedy provided uno flatu in it is the exclusive remedy. The Legislature in its wisdom did not think it fit and proper to provide a very easy and smooth remedy for enforcement of the rights and obligations created under the Act. Persons wishing the enjoyment of such rights and wanting its enforcement must rest content to secure the remedy provided by the Act. The possibility that industrial dispute under Section 10 on the ground of expediency is not a relevant consideration in this regard." ;