B.N. Misra, J. - (1.) Award of the Presiding Officer, Labour Court (I) Uttar Pradesh, Kanpur, dared 30-8-1989 (Annexure 6) is under challenge in this writ petition. The U.P. State Road Transport Corporation is the petitioner and the State of Uttar Pradesh, the presiding officer, Labour Court (I) and Ram Dayal, the workmen, are respondents 1, 2 and 3 respectively.
(2.) The facts of the case may be briefly noted. Respondent No. 3 was initially appointed as 'Mazdoor' on temporary basis for a fixed term from 5-3-1962 in the erst while U.P. Government Roadways. His term was being extended from time to time subject to the same condition of service. By order, dated 7-4-1964, he was appointed on temporary basis as semi skilled Fitter on the work-charged establishment. The petitioner, U.P. State Road Transport corporation was constituted with effect from 1-6-1972 under Section 3 of the Road Transport Corporation Act, 1950 and it succeeded to the assets and liabilities of the erstwhile U.P. Government Road ways. Powers exercised by the officers of the U.P. Government Roadways were delegated to the corresponding officers under the corporation and by Government order, dated 7-6-1972, all the employees including respondent No. 3 were sent to the U.P. State Road Transport Corporation on deputation. The post of Chief Mechanical Engineer under the U.P. Government Roadways continued to bear the same nomenclature under the U.P. State Road Transport Corporation. It appears that no regulations have yet been framed under Section 45 (2) (c) of the Road Transport Corporation Act, 1950 and therefore, the old ruled and regulations continue lo apply to the employees. Accordingly to petitioner corporation on 2-5-1977 respondent No. 3 was found to have illegally removed certain property belonging to the corporation and it is alleged that on being so found, respondent No. 3 submitted his resignation which was duly accepted by the Chief Mechanical Engineer on 12-5-1977. It also appears that on 5-5-1977 respondent No. 3 had filed an application before the Chief Mechanical Engineer to the effect that the so called letter of resignation had been forcible taken from him under duress. This plea of respondent No. 3 having been rejected and the alleged letter of resignation having been accepted on 12-5-1977, respondent No. 3 moved an application before the Regional Conciliation Officer, Kanpur under Section 2-A of the Industrial Disputes Act, 1947 (Central). On failure of conciliation and on the basis of the report submitted by the conciliation officer, the State Government referred the following dispute to the Labour Court under Section 10(1) (c) of the Industrial Disputes Act. ...[VERNACULAR TEXT OMITTED]... Written statement were filed by the parties before the Labour Court. On consideration and after hearing the parties, the Labour Court by its award dated 30-8-1980 found that the petitioner corporation had illegally accepted the letter of resignation of respondent No. 3 and, therefore, the corporation was direct to re-instate respondent No. 3 in service within thirty days. It was further directed that respondent No. 3 shall be deemed to be in continuous service from the date of termination till the date of the award though not entitled to any back wages for the said period. This award of the Labour Court is under challenge in this writ petition.
(3.) The main point urged by learned counsel for the petitioner is that the relationship of 'employer-employee' does not exist between the corporation and respondent No. 3 as on the date the dispute between the parties arose, respondent No. 3 was still a Government servant on deputation to the corporation and, therefore, the Government and not the corporation was the employer of respondent No. 3 Learned counsel for the petitioner further submits that this question relating to 'employer-employee' relationship between the corporation and respondent No. 3 had not been specifically raised before the Labour Court by the petitioner and such the Labour Court did not Examine this important point. Learned Counsel appearing for respondent No. 3 has urged that the question not having been raised before the Labour Court should not be permitted to be raised in the writ jurisdiction of this court as it may involve re-opening to fresh questions of fact and Law. In this context learned counsel appearing for the petitioner placed before this court judgment, dated 15-2-1980 in Civil Misc. Writ Petition No. 4063 of 1980. In that learned single Judge of this court had allowed the question of 'employer-employee' relationship to be raised for the first time in this court on the ground that it was a pure question of law going to the very roots of the jurisdiction of the Labour Court. With respect agree with the observations made in the aforesaid judgment of this court. Whether respondent No. 3 is an employee under the corporation or under the Government is undoubtedly a fundamental question affecting jurisdiction and the said question being a question of law should, be appropriately adjudicated upon by the Labour Court. In the circumstances, it is just and proper that the matter should be remanded to the Labour Court for a decision on the aforesaid question.;