J.C.Gupta - (1.) BY means of this writ petition, the petitioner has sought quashing of the order dated 15.10.79 (Annexure-8 to the writ petition) passed by respondent No. 1.
(2.) THE petitioner, who was serving as Watch and Ward in the Central Workshop of U. P. State Road Transport Corporation, Kanpur faced a disciplinary enquiry which culminated in the order dated 27.10.75 removing him from service. THE petitioner filed Civil Suit No. 531/75 in civil Court for a declaration that the said order of removal was illegal and ultra vires. On account of the coming into force of the U. P. Public Service Tribunal Ordinance, the suit was abated and was transferred to the Public Service Tribunal, respondent No. 1 for disposal. THE respondent No. 1 by the impugned order dated 15.10.79 dismissed the claim petition thereby maintaining the order of removal dated 27.10.75. The impugned order is challenged on the ground that the petitioner was not a public servant, hence the matter could not have been decided by the Public Service Tribunal and that the petitioner had committed no misconduct and could not be punished. In the counter affidavit, it is stated that if the petitioner was a workman, the civil suit filed by him was itself not maintainable as in that event only the Labour Court had the jurisdiction under the Industrial Dispute Act to decide the petitioner's claim. It is further asserted that the petitioner never raised such a plea before the Service Tribunal, therefore, he cannot be permitted to raise that plea for the first time in the writ petition. The Enquiry Officer conducted the enquiry in accordance with law and the order of removal was passed with application of mind. Sri V. K. Barman, learned counsel for the petitioner contended that the petitioner was not a 'public servant' and as he was only a work-charged employee, ie., 'a workman', the provisions of the U. P. Public Service Tribunal Act did not apply to him. Therefore, the Tribunal's order dismissing the petitioner's suit is without Jurisdiction.
(3.) FIRSTLY, it may be pointed out that no such case had been put forward by the petitioner in the pleadings of the suit which he himself filed nor such a plea was ever raised before the Tribunal. If the petitioner was a 'workman' and was governed by the provisions of the U. P. Industrial Disputes Act, in that event the suit filed by the petitioner was itself not maintainable because of the exclusion of the jurisdiction of Civil Court in such matters. The order of removal then could only be challenged before the Labour Courts under the Industrial laws and not before Civil Courts. If the civil suit filed by the petitioner was itself not legally maintainable, the order of removal stands unchallenged as the petitioner is not shown to have availed of any other remedy challenging the said order, the petitioner, therefore, does not gain anything on this plea because in the event of the civil suit being not maintainable, the order in question remains unchallenged and will hold the field. In the circumstances, the petitioner cannot be permitted to raise this plea for the first time before this Court in this writ petition. Apart from this, it may be seen that in the counter affidavit it has been clearly stated that the terms and conditions of the petitioners employment were governed by the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Clause 2 of the standing orders applicable to the Central Workshop employees clearly provides that the standing orders shall apply to all the workmen excluding those who are governed by Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules or any other rule, that had been notified by the State Government in this behalf in the official Gazette. In this view of the matter, the petitioner was governed by Fundamental Rules aforesaid and other rules applicable to Government servants and the provisions of standing orders were not applicable to the petitioner. Learned counsel for the petitioner tried to attack the removal order on the ground that the conclusion arrived at by the Enquiry Officer was not correct. The Service Tribunal, respondent No. 1 has gone into the facts of the case and has recorded findings of fact that the proceedings before the Enquiry Officer were held in a proper and legal manner and full opportunity was given to the petitioner to defend himself. The Tribunal has also considered and repelled the contention of the petitioner that on the finding that the petitioner had consumed alcohol was not sufficient to bring the petitioner's within the meaning of misconduct, and has given cogent reasons in arriving at the conclusion that the petitioner was found in a state of intoxication while on duty and that smell of liquor was coming from his mouth, which was corroborated by the Medical Report, Clause 9 of the standing Order No. 25 runs as follows : Clause 9.-"Drunkenness, fighting, riotous or disorderly behaviour of ................or conduct likely to cause a breach of peace, or conduct endangering life or safety of any person or any act subversive of discipline and efficiency and any act involving moral turpitude committed within the workshop premises or office premises.";