PRAFULLA C.PANT, J. - (1.) BY means of this petition, moved under Article 227 of the Constitution of India, the petitioner has challenged the order dated 27.12.2003, passed by respondent No. 1, whereby reference has been made under Section 4K of U. P. Industrial Disputes Act, 1947, to the Industrial Tribunal/Labour Court, Haldwani, in respect of the following industrial dispute : "Whether termination order dated 16.11.2000, passed by the employer against its workman Shri Ram Chandra Malani, S/o Shri Chiranji lal Malani, Assistant Officer (Raw Material), is proper and/or legal? If not, to what benefits is the workman entitled?"
(2.) HEARD learned counsel for the parties. Brief facts of the case, as stated in the writ petition, are that petitioner is a unit of Century Textile and Industries Limited, having its registered office in Mumbai. In its unit, situated at Ghanshyam Dham, P.O. Lalkuan, District Nainital, the petitioner manufactures Rayon Grade Pulp and Paper, Bagasse Paper etc. According to the petitioner, respondent No. 2 Shri Ram Malani was appointed as Assistant Officer in the cadre of Shift In-charge vide appointment letter dated 1.6.1995 (copy Annexure-1 to the petition). He was confirmed vide letter dated 1.12.1995 (copy Anncxure-2 to the petition) in the service of the petitioner. It is stated in the writ petition that respondent No. 2 performed his duties as Assistant Officer till 16.11.2000 and many Supervisors and Assistants were under his command. The job description, issued to the respondent No. 2 on 31.1.1999 (copy Annexure-4 to the petition) disclosed the nature of job performed by him. As per the terms, mentioned in the appointment letter, services of respondent No. 2 were liable to be terminated by one month notice or payment of one month salary in lieu thereof. Vide order dated 16.11.2000 (copy Annexure-6 to the petition), services of respondent No. 2 were terminated and he was offered one month salary, but he did not turn up for obtaining 'no dues certificate'. Instead, he challenged termination order dated 16.11.2000 by filing Writ Petition No. 202 (S/S) of 2000. Said writ petition was dismissed by Division Bench of this Court vide order dated 18.10.2002 (copy Annexure-8 to the petition) on the ground that the employer is not a public authority. Thereafter, respondent No. 2 Shri Ram Chandra Malani filed a case under Section 24K of U. P. Industrial Disputes Act, 1947, in the year 2003 before respondent No. 1, i.e., Assistant Labour Commissioner. Haldwani. The petitioner (employer) contested said case and filed its written statement before said authority, challenging the jurisdiction to the entertain the application moved by the respondent No. 2. The petitioner who was employer of respondent No. 2 took the plea that the nature of job of respondent No. 2 was managerial and administrative. It was pleaded by the employer that under the definition of workman, given in Section 2 fzj, respondent No. 2 was an employee of Officers' Class. However, respondent No. 1 vide its order dated 27.12.2003 (copy Annexure-12 to the petition) made a reference of industrial dispute to the labour court, as mentioned above. Hence, this petition, challenging the legality of the order passed by respondent No. 1 referring the dispute to labour court.
(3.) ON behalf of respondent No. 2 a counter-affidavit has been filed in which the deponent has admitted being appointed as Assistant Officer (Raw Material). It is further stated by the contesting respondent No. 2 that the petitioner has distorted the facts and it is wrong to say that the respondent No. 2 was not a workman. It is further stated that the cases of similarly situated workmen, namely, Hernant Kumar, Assistant Officer (Electrical) and Vipin K. Mazlani, Administrative Officer, are being tried by the labour court, as is apparent from Annexures CA-1 and CA-2 to the counter-affidavit. It is further stated that the correctness of the terms and conditions or job description can be examined by the Labour Court/ Industrial Tribunal. It is further stated that dispute as to whether the respondent No. 2 is a workman or not is a question of fact and cannot be decided by this Court in its writ jurisdiction.;