- (1.) THE Award dated 30. 6. 1989 published on 1st September, 1989 passed by the Labour Court (III) U. P. Kanpur, has been challenged by the petitioners, by means of present writ petition. Sri V. M. Sahai, learned counsel for the petitioners assails the said Award on the ground that the respondent no. 1 was an employee in the U. P. Government Roadways, which was ultimately taken over by the u. P. State Road Transport Corporation (hereinafter referred to as the Corporation ). The employees of U. P. Government Roadways continued to serve in the Corporation but they were not absorbed in the said Corporation. Having been appointed in the year 1965 by the U. P. Government Roadways he continued to serve in the Corporation after the same was created on 1st June, 1972. He was suspended on 25. 8. 1981 in contemplation of a departmental inquiry and was ultimately removed from service by an order dated 19th November, 1983, after he was found guilty in the domestic inquiry. The respondent no. 1 raised an Industrial dispute within the meaning of Section 4-K of U. P. Industrial Disputes Act, 1947, out of which adjudication case No. 71 of 1985 was registered. In the said case by an order dated 6. 2. 1989 the disciplinary proceeding was held to be improper and was decided on merit by an Award dated 30th June 1989 directing reinstatement with back wages of respondent No. 1.
(2.) SRI V. M. Sahai, learned counsel for the petitioners while assailing the said award contends that the validity of U. P. Ordinance No. 9 of 1987 having been upheld in the case of N. P. Sharma v. Regional Manager, U. P. State Road Transport corporation, (1988 56 FLR 185 Alld. =1988 U. P. L. B. E. C. 155) the learned Labour Court had erred in placing reliance on the said judgment in the case of Ram Narain Tewari v. Joint General Manager, (1984 2 Lko. Civil Decisions p. 298) and holding that there was relationship of master and servant between the respondent no. 1 and the Corporation inasmuch as though he was serving in the Corporation the respondent no. 1 was a Government employee subject to the remedy before U. P. Public Services Tribunal, Lucknow. Since there was no relationship of employer and employee between the Corporation and the respondent no. 1 the same can not come under the purview of the decision of 'industrial dispute' as defined under the industrial Disputes Act, particularly Section 4-K of the U. P. Act. The respondent no. 1 being a Government servant is not a workman within the meaning of definition of the Industrial Disputes Act and, as such, can not raise an Industrial dispute. By reason thereof the Labour Court having been appointed under the Industrial disputes Act and exercising jurisdiction under the power conferred upon him under industrial Disputes Act and deciding the disputes within the ambit and scope of industrial disputes, as defined under the said Act, had no jurisdiction to decide the present dispute, raised by a Government employee, with whom the Corporation had no relationship of employer and employee. Alternatively he argues that the services of respondent No. 1 has been terminated by the Regional Manager, who was empowered to terminate such services by virtue of ordinance, referred to above, the termination was valid and can not be questioned on the ground of jurisdiction as has been held in the Award on a misconception of law.
(3.) SRI Arun Prakash, learned counsel appearing on behalf of respondent no. 1, on the other hand contends that the disciplinary proceeding having been held to be improper and the Tribunal having decided the case on merits on the basis of material produced in the course of trial, the same is a finding of fact with which this court can not interfere. He further contends that the Regional Manager not being the appointing authority, could not have terminated the services of respondent no. 1. He further contends that since the respondent no. 1 was working under the Corporation alike all erstwhile employees under the U. P. Government Roadways all of whom were subsequently absorbed in 1982, the petitioner can not be treated to be on a different footing. According to him despite the said ordinance the order of termination by the Regional Manager, can not be held to be legal and valid. He further contends that the respondent No. 1 is to get his payment from the corporation and he used to serve the Corporation and the Corporation had terminated his services. Therefore, it can not be said that there was no relationship of employer and employee between the Corporation and the respondent No. 1. According to him if the respondent No. 1 is to be treated as a Government servant on deputation at the Corporation, in that event his services could not have been terminated, and he could only be repatriated to his parent department. He contends further that if there is no relationship of employer and employee, in that event the petitioner could not have held domestic inquiry and terminate his services. He could have at the best be returned to his parent employer. Therefore, the award given by the Tribunal can not be assailed and is to be affirmed.;