DWARKA PRASAD, J. - (1.) THE petitioner Shanker Lal was employed as a workcharged Nakedar in the Mining Department of the State of Rajasthan by the order dated October 11, 1968. He was a daily rated employee getting Rs. 3/- per day. As he became surplus to the requirement of the Mining Department, his services were terminated by the order of the Mining Engineer, Jaipur dated November 21,1970. Later on, taking a sympathetic view, the State Government referred his case to the General Administration Department and then he was appointed afresh as a Chowkidar in the Mining Department by the order dated December 8, 1970, again as a workcharged daily rated employee getting Rs. 3/- per day. Shankerlal joined his new duties on December 9, 1970. From the post of Chowkidar he was transferred to the post of workcharged Nakedar with effect from January 1, 1972 by the order dated January 6, 1972 and he continued to receive the same emolument of Rs. 3/- per day, as a daily rated employee. A show-cause notice for taking disciplinary action against him was given to Shankerlal on November 22, 1973, but before he filed his reply on December 1,1973 he was discharged from service with effect from November 28, 1973.
(2.) THE petitioner has challenged the order of termination of his employment with effect from November 28, 1973 in this writ petition. THE first submission of the learned counsel for the petitioner is that the petitioner was a temporary employee and the termination of his employment was contrary to the provisions of Rule 23-A of the Rajasthan Service Rules, 1951 (hereinafter referred to as "the Rules") and as such the order of termination of the service of the petitioner deserves to be set aside. In this respect, it may be observed that clause (g) of the Second proviso to rule 2 of the Rules lays down that the said Rules would not be applicable to workcharged employees. It cannot be denied that the petitioner was a workcharged employee, as it is apparent from the order of his appointment and transfer on the post of Nakedar. He was a workcharged daily rated employee getting Rs. 3/- per day plus usual allowances, as such the provisions of rule 23-A of the Rules were not applicable to the petitioner. In the year 1964, rules were made under the proviso to Art. 309 of the Constitution in respect of workcharged employees, but they were not applicable to the petitioner, for such rules apply only to the workcharged employees of the PWD. (B & R), Gardens, Irrigation, Water Works and Ayurvedic departments, but they have no application to the workcharged employees in the Mining Department. Thus, there being no provision in the Rules or any other law, governing the conditions of service of the petitioner, it was open to the employer to terminate his service at any time. Learned counsel was unable to show that the order of termination of the service of the petitioner dated November 28, 1973 was passed in contravention of any provision of law or Rules I, therefore, cannot accept the submission of the learned counsel that the service of the petit-oner could have been terminated only in accordance with the provisions of Rule 23-A of the Rules, as the said rule were not applicable to the petitioner. Another submission advanced by the learned counsel is that many workcharged Nakedars, junior to him. were still continuing, while the service of the petitioner has been terminated and the order of termination of his service is invalid being in contravention of the provisions of Articles 14 and 16 of the Constitution. Learned Additional Government Advocate has placed before me the relevant record for perusal and submitted that Chittarmal Loonkar, Nakedar was employed on 15-4-69, Dhanraj on 23-4-69 and Ram Bachhansingh on 1-1-70, while the petitioner was given a fresh appointment as a Chowkidar in the Mining Department on 8-12-70. Thus, it cannot be held that persons junior to the petitioner were continuing in service, while the petitioner's services have been terminated. Applying the principle of last come first go, the petitioner was the last person and he could have been made to go first and no illegality can be found in the termination of his service on this ground. Learned counsel then sought to raise another contention that the petitioner was a 'workman' within the meaning of the Industrial Disputes Act as the Mining department was an 'industry', the provisions of Section 25-F of the Industrial Disputes Act were attracted in his case, which were not complied with while dispensing with the service of the petitioner and as such the order of termination of the service of the petitioner was invalid In the first place. I may observe that this submission has not been taken in the writ petition, which was filed in the year 1973 and a new submission involving questions of fact cannot be allowed to be advanced after the lapse of more than 6 years. Further there is no material on record to show as to what was the nature of the duties performed by the petitioner. Unless the nature of his employment is known and the nature of duties performed by him as a Nakedar is disclosed, this Court is not in a position to decide whether the petitioner was a 'workman' or not and whether the Mining department is an 'industry' or not. In the case of a Nakedar employed in the Mining department, a learned Single Judge of this Court in State of Rajasthan vs. Ram Richpalsingh (S. B. Civil Writ Petition No 1712 of 1969 decided on March 24. 1971 ). held that the function, of a Nakedar is to collect royalty from the persons to whom mining leases are granted and so he is not a 'workman'. It was also held in that case that the Mining department is not an industry as it carries on activities in the nature of business or trade in granting leases and collecting royalty from the lease holders. The decision of the learned Single Judge was upheld on appeal by a Division Bench of this Court in Ram Richpalsingh vs. State of Rajasthan (D B. Civil Special Appeal No. 343 of 1971 decided on May 10,1971),wherein the Division Bench held that the collection of royalty is a regal function of the State and an employee of the Mining department employed for the purpose of collection of royalty is not a 'workman* under the Industrial Disputes Act. Learned counsel drew my attention to my decision in the case of State of Rajasthan vs. Bhagwan Sahai (S. B. Civil Writ Petition No. 2090 of 1971 decided on 19-2-77), which also related to the case of a Nakedar employed in the Mining department of the State Government. However, in that case, it was not held by me that the employee was a 'workman' within the meaning of the Industrial Disputes Act or that the Mining department of the State was an 'industry'. All that I observed in that case was that the objection about jurisdiction of the Labour Court was not raised before that court and no material was placed on the record of the Labour Court or before this Court in the writ petition for deciding the question as to whether the concerned employee was a 'workman' employed in an 'industry' and in the absence of such material, it was held that the contention could not be allowed to be raised for the first time in the writ petition. In this case, the contention has not even been raised in the writ petition, but was taken for the first time during the course of arguments. It is not possible to decide these questions without there being any material to show the nature of duties performed by the employee or the kind of work done by the Mining department of the State. In the absence of any material, this question cannot be allowed to be raised in this writ petition. Moreover, the question regarding the alleged violation of Section 25-F of the Industrial Disputes Act could not be allowed to be raised in the writ proceedings but the petitioner should have raised an industrial dispute. Learned counsel for the petitioner in this context relied upon a decision of the Kerala High Court in the Divisional Superintendent, Southern Railway Madurai vs. Sasidharan (1), in support of the submission that the objection relating to violation of Section 25-F of the Industrial Disputes Act could be raised straightway in the jurisdiction, without raising any industrial dispute. In that case, the facts were not in dispute that the employee was a 'workman' employed in an 'industry'. However, the question was raised that the writ petition should not be entertained as the employee did not raise a dispute under the Industrial Disputes Act. The Bench of the Kerala High Court in the first instance declined to go into the question as their Lordships were of the opinion that the contravention of the provisions of Section 25-F and 25-G of the Industrial Disputes Act could be raised only in an industrial dispute and be adjudicated upon by the special Tribunal-provided for under the provisions of that Act and no short-circuiting was permissible. However, probably upon a reconsideration of the matter, their Lordships followed an earlier decision of the Division Bench of that court and allowed the point to be raised on the ground that the remedy by way of proceedings under the Industrial Disputes Act was not an alternative remedy, as Section 10 of the Industrial Disputes Act empowers the State Government to make a reference, but it does not create a right in the employee. With great respect to their Lordships of the Kerala High Court, 1 am unable to agree with the decision in Sasidharan's case (I ). Probably the attention of their Lordships of the Kerala High Court was not drawn to the decision of their Lordships of the Supreme Court in the Premier Automobiles Ltd. vs. Kamlakar Santaram Wadke (2), wherein a similar submission was made and it was held by their Lordships that the remedy provided by way of making a reference under Section 10 of the Industrial Disputes Act is the exclusive remedy which should be availed of in respect of rights and obligations which were the creation of the Industrial Disputes Act itself. Their Lordships of the Supreme Court accepted and approved the undermentioned dictum of Lord Tenterden C. J. in Deo vs. Bridges (3): - "where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner. " Considering the objection that Section 10 (1) of the Industrial Disputes Act did not confer any right on the employee and it did not provide a remedy in the eye of law, their Lordships of the Supreme Court observed as under in the Premier Automobiles' case (2): - "it is also true that it was not open to the workman concerned to approach the Labour Court or the Tribunal directly for adjudication of the dispute. It is further well established on the authorities of this Court that the Government under certain circumstances even on the ground of expediency (vide State of Bombay v. K. P. Krishnan, (1961) SCR 227 = (AIR 1960 S. C. 1223) and Bombay Union of Journalists vs. The State of Bombay, (1964) 6 SCR 22 = AIR 1963 S. C. 1617) can refuse to make a reference. If the refusal is not sustainable in law, appropriate directions can be issued by the High Court in exercise of its writ jurisdiction. But it does not follow from all this that the remedy provided under the Act is a misnomer. Reference of Industrial disputes for adjudication in exercise of the power of the Government under Section 10 (1) is so common that it is difficult to call the remedy a misnomer or insufficient or inadequate for the purpose of enforcement of the right or liability created under the Act. The remedy suffers from some handicap but is well compensated on the making of the reference by the wide powers of the Labour Court or the Tribunal. The handicap leads only to this conclusion that for adjudication of an industrial dispute in connection with a right or obligation under the general or common law and not created under the Act, the remedy is not exclusive. It is alternative. But surely for the enforcement of a right or an obligation under the Act the remedy provided uno flatu i. e. it is the exclusive remedy. The legislature in its wisdom did not think it fit and proper to provide a very easy and smooth remedy for enforcement of the rights and obligations created under the Act. Persons wishing the enjoyment of such rights and wanting its enforcement must rest content to secure the remedy provided by the Act. The possibility that the Government may not ultimately refer an industrial dispute under section 10 on the ground of expediency is not a relevant consideration in this regard," After considering several pronouncements of the English Courts as well as of the Supreme Court, their Lordships summed up their decision on the question relating to adjudication of industrial disputes by laying down the undermentioned four principles: - " (1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court. (2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy. (3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act. (4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either section 33 C or the raising of an industrial dispute, as the case may be. " The principle laid down in sub-para (3) above is fully applicable to the matter in hand, as the right or obligation under Section 25-F of the Industrial Disputes Act, the enforcement; of which is sought by the petitioner, is a creation of that Act and the only and exclusive remedy available in such circumstances was to get an adjudication under that very Act.
(3.) THE aforesaid decision has been followed by their Lordships of the Supreme Court again in Rohtas Industries Ltd. vs. Rohtas Industries Staff Union (4), wherein their Lordships of the Supreme Court observed that the Industrial Disputes Act is a comprehensive and self-contained Code, so far as the enforcement of the rights created therein are concerned and such rights can only be enforced through the procedure laid down in that Act. After quoting the observations made in the Premier Automobiles' case (2), their Lordships made the following observations in Rohtas Industries' case (4): - "since, the Act which creates rights and remedies has to be considered as one homogenous whole, it has to be regarded uno flatu, in one breath, as it were. On this doctrinal basis, the remedy for the illegal strike (a concept which is the creature not of the common law but of Section 24 of the Act) has to be sought exclusively in Section 26 of the Act. " In view of the decisions of their Lordships of the Supreme Court in Premier Automobiles case (2) and Rohtas Industries case (4), with great respect to the learned Judges of the Kerala High Court, I am unable to follow the decision in Sasidharan's case (1 ). In my humble view the proper remedy for the petitioner, if he desires to take an objection regarding the alleged infringement of the provisions of Section 25 F of the Industrial Disputes Act, is to raise an industrial dispute and for this reason also this objection cannot be allowed to be raised in the writ proceedings in this Court. No other point was argued by the learned counsel before me. As a result of the foregoing discussion, the writ petition has no force and is dismissed. However, the parties are left to bear their own costs. . ;