- (1.) D. K. Seth, J. The petitioner's case, inter alia, was that one Sri Raj Narain, respondent No. 3, was initially appointed on 2-7-1963 as Conductor on temporary basis in U. P. Government Roadways. By Notification No. 2869/xxx-2-422-T-68 dated 31st May, 1972 published in the extra ordinary Gazette dated 1st June, 1972, U. P. State Road Transport Cor poration' (hereinafter referred to as UPSRTC) was constituted with effect from 1st June, 1972 under Section 3 of Road Transport Corporation Act, 1950. The erstwhile employees of U. P. State Roadways Organisation (hereinafter referred to as UPSRO) continued to serve in the Corporation. The status of the said employees were determined to be on deputation in the service of the Corporation, by means of notification dated 5-7-1972 amend ing the earlier Government order dated 7-6-1972 with regard to the status of the employees. A charge-sheet dated 7-2-1975 was issued to the respon dent No. 3 for carrying passengers without ticket on different dates. The respondent No. 3 was placed under suspension by order dated 17-9-1975. A dispute was raised against the said order suspension and the same was referred to the III Industrial Tribunal, U. P. at Kanpur and the same was registered as Adjudication Case No. 271 of 1975. In the order of reference in the said Adjudication case, the controversy was referred to as dismissal. After the said discrepency was pointed out the word 'dismissal' in the order of reference dated 12-11-1976 was substituted by the word suspension. In the additional written statement the Corporation took a stand that the respondent No. 3 was a Government servant, and, therefore, the Labour Court had no jurisdiction to adjudicate upon the matter. In the written statement filed on behalf of respondent No. 3 the said stand was admitted by the Union (Annexure-2 to the writ petition) In the departmental inquiry the charges having been proved by an order dated 3-11-1976 the respondent No. 3 was dismissed. On 6-5-1977 the respondent No. 3'filed an application under Section 6-F of the U. P. Industrial Disputes Act (here inafter referred to as the U. P. Act) challenging the order of dismissal passed during the pendency of Adjudication case and the same was register ed as Misc. Case No. 1 of 1977. In the written statement filed by the petitioner it was alleged that the petitioner being Government servant on deputation with the Corporation, the Industrial Tribunal had no jurisdic tion to adjudicate upon the same. Without adjudicating the question of jurisdiction the learned Tribunal proceeded to decide as to whether dogmatic inquiry was fair and proper. A writ petition being Civil Misc. Writ Peti tion No. 7901 of 1978 was dismissed by this Court on 27-9-1988. filed by the petitioner, challenging the same on the ground that no interference was called for at interlocutory stage. Thereafter the said adjudication case No. 271 of 1976 and Misc. Case No. 1 of 1977 were heard together By award dated 28-10-198, published on 23-11-1979 passed in Misc. Case No 1 of 1977 the learned Tribunal had set aside the order of dismissal and directed re-instatement of respondent No. 3 with back wages (Annexure-4 to the petition ). In the meantime by award dated 26-10- 1979, published on 23-11-1979, the Adjudication Case No. 271 of 1975 was allowed by setting aside the order of suspension with full wages (Annexure-5 to the writ peti tion i. The said two awards were challenged in Writ Petition No. 2504 (C)/ 1980. By order dated 18-12-1985 passed in the said writ petition the said two awards were quashed and the matter was remanded to the Industrial Tribunal for decision on merits (Annuxure-6 to the petition ). After such remand, by award dated 21-1-1987, published on 28-5-1987 the Tribunal had set aside the order of suspension as well as the order of dismissal on the ground that the Corporation had no jurisdiction to initiate domestic inquiry against the employee concerned. It is against this order the present writ petition has been moved.
(2.) SRI Sameer Sharma, learned counsel for the petitioner contends that the learned Tribunal has failed to appreciate Full bench decision in the case of Ram Krishna Yadav v. U. P. State Road Transport Corporation, Writ Petition No. 150 of 1980, decided on 24-12-1980. He further contended that the Tribunal did not appreciate the decision in the case of J. P. Gupta v. State of U. P. 1980 ALR 81, as well as the decision in Civil Misc. Writ Petition No. 5315 of 1978, which was based in the judgment in the case of J. P. Gupta (supra ). The Tribunal also failed to appreciate the ratio decidendi in the order of remand passed in Writ Petition No. 2504 (C)/19and0 which was based on the decision in the case of J. P. Gupta (supra ). SRI Sharma further relied on the case of Surendrapal Singh v. State of U. P. , 1988 (56) FLR 463. He also relied on the case of Surajpal Singh v. Labour Court, Allahabad ,'vwand (57) FLR 194. He also relied on the case of Bhopal Singh v. Managing Director, V. P. State Road Transport Corporation, 1986 (12) ALR 556 : 1986 UPLBEC 634 and, in the case of Nagendra Prakash Sharma v. The Regional Manager, VPSRTC, 1988 UPLBEC 155 in support of his contentions. According to him, there was no relation of employee arid employer between the respondent No. 3 and the Corporation, giving rise to any industrial dispute, which can be adjudicated upon by the Tribunal unless, according to him, the relation subsists, there cannot be any industrial dispute. Sri B. N. Singh, learned counsel appearing on behalf of respon dent No. 3, on the other contends that the order of dismissal, cannot be sustained because the same was passed during the pendency of the dispute. Iitasmuc has in such circumstances the dispute attracts the mischief of Sec tion 6-F of the U. P. Act. He contends that if there is no relationship in that event the Corporation was incompetent to pass the order of suspension and that of termination. If the order of suspension or termination remains, the same indicates existence of relationship of employer and employee. According to him the organisation of U. P. State Road Transport Corpora tion is an industry, therefore, the respondent No. 3 is a workman under U. P. State Road Transport Corporation. As such there exist industrial dispute, which has been rightly adjudicated upon by the Industrial Tribunal. Sri Singh relies upon the decision in the case of Bihar State Road Transport Corporation v. State of Bihar, AIR 1970 SC 1217 and contends that in the said case the relationship of the employees taken over by the Road Trans port Corporation pursuant to the notification under Section 3 of the Road Transport Corporation Act, were treated to be the employees of the Corporation and, as such, on the ratio of the said decision the respondent No. 3 herein is also an employee of the Corporation. He also relies on the decision in the case of Surendrapal Singh (supra) and the decision in the case of U. P. State Rood Transport Corporation, Central Work-shop, Kanpur v. Ram Dayal, 1992 AWC 1327, He also relied on the decision in the case of D. R. Gurushanthappa v, Abdul Khuddus Anwar, AIR 1969 SC 744, in order to substantiate his contention that the workman was an employee of the Corporation. He also refers to the decision in the case of Elgin Mill Company Limited v. Labour Court (II) U. P. Kanpur, 1992 AWG 1161, and contends that because of passage of time this court should not interfere with the award in view of the ratio decidendi in the said case. The further relies on the decision in the case of G. V. M. Reddy v. Depot Manager, 4. P. S. R. T. C. 1993 LLR 252. According to him there was relationship of employee and employer between the respondent No. 3 and the Corporation. Therefore, the award cannot be challenged. Alternatively, if there was no relationship then the order of suspension and dismissal cannot be sustained since the Corporation is incompetent to pass such orders. In order to appreciate the situation it is necessary to refer to the following facts. By or under the Government order No. 000/20-30-2- 16q-N-72 dated 7th June, 1972 as amended by Government order No 3414/30-2-170-N-72 dated 5th July, 1972 the services of the employees of UPSRO were placed on deputation with UPSRTC after its creation with effect from M-1972. The said Government order provides that all permanent arid temporary officers and employees, who were in service with the Government Roadways prior to the constitution of State Road Transport Corporation, shall be deemed to be on deputation in service of the Corporation. He further spates that since UPSRTC has not framed Service rules under Section 45 at the Road Transport Corporation Act for its subordinate employees regarding condition of service. Therefore, the 'government order drafted 7th June, 1973 except para 1 (Ka) was deemed to be cancelled. It was further provided that the conditions of service of the officers and employees shall not be inferior to those which were available to them prior to absorption in U. P. Government Roadways and the period of work, prior to the same shall be included by the Corporation for the purposes of seniority. , promotion, Pay fixation, leave and financial benefits, which shall be the same as were available in the Government service. Therefore, the status of the respondent No. 3 continued to be that of the Government servant under the Government of U. P. on deputation to the Corporation and his condition of service shall be governed by the Government Service Rules.
(3.) IN exercise of the powers under Article 309 of the Constitution of INdia, U. P. Roadways Organisation (Abolition of Posts and Absorption of the Employees) Rules, 1982 was framed by the Government- The said rule came into force on 28th April, 1982 by or under notification No. 2051/xxx-2-170-N-72 of even date published in the Official Gazette. The said rules were given overriding effect by means of Rule 3 (2) of the said Rules and by Rule 3 (1) the same were made applicable to all employees of the UPSR6 working on deputation with UPSRTC. The employees referred to in Rule 3 (i) was defined in Rule 2 (ii) #3 Government servant employed in UPSRO and working on deputation -with -the Corporation. Under Rule 4 (1) the employees were required to intimate their wish if they do not want to be absorbed in UPSR FC. IN default by reason of Rule 4 (2) the employees would be deemed to have opted for absorption and stood absorbed in the service of the Corporation with effect from expiry of three months from 28th April, 1982, namely, on 28th July, 1982, by reason of Rule 4 (3 ). The consequences of absorption were provided in Rules 7 and 8. By virtue of Rule 5 (1) the relevant post held by the concerned employee, under the State Government stood aboli shed, upon such absorption with affect from 28th July, 1982. in respect of the employees who did not opt to be absorbed, their services stood terminated and dispensed with under Rule 5 (ii) on the expiry of the period of notice provided in Rule 6. A combined reading of the notification dated 5th July, 1972, by which the employees of UPSRO were treated to be on deputation as Government servant in the service of UPSRTC continued to be so in the service of Corporation until 28th July, 1982, by reason of the provisions contained in the said 1982 Rules. The status of the respondent No. 3 was governed by the said notification dated 5th July, 1972, since his services stood terminated in 1975. Therefore, he could not come within the purview of Rule 4 (2) read with Rule 4 (3) of the said Rules for being treated as absorbed in the service of the Corporation. Until termination of his service, the respondent No. 3 continued to remain a Government servant on deputation in the services of the Corporation. Therefore, there was no relationship of employee and employer between the respondent No. 3 and the Corporation.;