A.P. Misra, J. - (1.) Heard learned counsel for the petitioner. By means of the present writ petition the petitioner has challenged the order dated 27th July, 1981 passed by the Labour Court holding that the petitioner is not the workman under the Industrial Disputes Act and also the order dated 3rd November, 1982 by virtue of which the application for setting aside the ex parte order has been rejected.
(2.) The case of the petitioner is that the State Government under Section 4 - K of the U.P. Industrial Disputes Act, 1947 referred the matter for adjudication to the Labour Court by means of an order dated 18th December, 1979. According to the petitioner he was an employee in the Roadways Organisation of the State Government till the year 1971. Subsequently in the year 1972 U.P. State Road Transport Corporation was created under the Road Transport Act. After that creation the employees of the earlier Roadways of the State Government became the worker of respondent, the aforesaid Corporation. Subsequently many of the employees of the Roadways were absorbed as employees of the Corporation and many continued to be on deputation. It is not in dispute that the present petitioner continued on deputation of the Corporation. According to the respondent, the petitioner was not removed from service but he was appointed in short term vacancy for a fixed period and his term came to an end on 31st January, 1977, since his appointment was for a fixed period and that was the last date stipulated under the said order. The main contention on behalf of the petitioner is that the finding recorded by the Labour Court that the petitioner is not a workman is not sustainable as the workman has been appointed directly as it has been decided in Civil Misc. Writ Petition No. 11570 of 1982 (Surendra Pal Singh v. State of U.P. and others) by a Division Bench of this Court on 13.1.1988. In that case the argument which is being raised here was also raised and it was held that since there is no provision of contract for the employees with the Corporation, such person continued to be under the employment of the State Government and since Roadways has been held to be an industry, the petitioner in that case was also held as workman under the Industrial Disputes Act. In view of the aforesaid decision the finding that the petitioner is not workman, cannot be sustained. Learned counsel for the respondents urged that since in the present case his services came to an end on 31st January, 1977 and Section 2 - A came into force in the year 1978, no reference could have been made and, therefore, the reference made in the present case will be incompetent and not sustainable. In this case find that this question was not raised by the respondents either before the Labour Court or even before me in the writ petition. No such ground or averment has been made to show as to what were the various dated regarding the dispute of the petitioner and. the date of the coming into force of Section 2 - A. Learned counsel for the respondents relied on two decisions of this Court reported in the case of National Textiles Corporation U.P. Ltd. v. S.N. Shukla and others, 1979 Vol. 39 FLR 101 and Jagdeo Pandey v. Labour Court and another, 1987 Vol. 55 FLR 421. Before the respondents could succeed he has to lay foundation to show various dates not only as to when the services of the petitioner came to an end but also, if permissible, when he filed appeal, Second Appeal and then to show whether on that date Section 2 - A of the Industrial Disputes Act was adopted by the U.P. Act and also whether any such dispute was there or not. Learned counsel for tire petitioner in this case urged that he raised this dispute before the appellate authority and the appellate authority on 24.4.78 decided his appeal. Thereafter he preferred Second Appeal on 18.3.79 which was pending when the said Act came into force. In view of this fact and the fact that the respondent has not raised this point before the Tribunal nor even before this Court, is not entitled to raise the same here at this stage. Thus it cannot be said that on that account the Labour Court could not have examined the case of the petitioner.
(3.) Lastly, the learned counsel for the respondent urged that since it is not a case of absolute absorption or removal from service but is a case of service coming to an end on a particular date, therefore, it is not case in which any reference could have been made. For the purpose he relied on the case of Sri B.K. Sharma v. State of U.P. and others, 1976 FLR (All) 280. This again is the question which has not been gone into by the Labour Court and since the Labour Court held the petitioner not to be workman, it would not be right for this Court to go into that question at this stage.;