Allahabad High Court
Anand Kumar Singh S/O Shri Someshwar ... vs U.P. State Road Transport Corporation ... on 11 September, 2007
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard learned Counsel for the petitioner, the Standing counsel for the respondents and perused the record.
2. The petitioner possesses I.T.I diploma in Mechanical Diesel from the State Institute of Training Board, Madhya Pradesh in 1986. He was appointed as cleaner in the UPSRTC in 1989 and was thereafter promoted to the post of Fitter in 1994 and since then he is continuously working on the said post at Regional Work-shop, Jhunsi.
3. It is alleged that a Trade test and Interview was held by the respondents Corporation for promotion on the various posts. The petitioner also appeared in the Trade test and interview held in the months of July/August. 2007.
4. After the result was declared by the order dated 4 8.2007 respondent Nos. 4, 5 and 6 were declared successful whereas the petitioner was not declared successful.
5. Aggrieved the petitioner has come up in this writ petition.
The counsel for the petitioner submits that the respondents authorities have adopted pick and choose policy in promoting the concerned employees of their choice as respondent Nos. 4, 5 and 6 have been declared successful even though they are not I.T.I, qualified in any trade of automobile.
6. It is urged that the petitioner has been wrongly declared unsuccessful though he is a skilled mechanic of automobile having qualification of I.T.I. Mechanic Diesel whereas respondent Nos. 4,5 and 6 who have been declared successful and promoted are unskilled Body Mechanic and they are not having any Technical Training Certificate; that as per Service Regulation 1981 of the Uttar Pradesh Road Transport Corporation Employees (Other than Officers) promotion is to be made on the basis of rejection of Rule of unfit.
7. Sri Vivek Saran, counsel for the respondents submits that the petitioner has been awarded punishment vide order dated 13th March 2007 and that the appeal preferred by him against the aforesaid order was reject vide order dated 18th July, 2007 by the Appellate authority, hence the petitioner was not promoted having been found unfit for being promoted to next higher post.
8. Sri Vivek Saran, counsel for the respondents further submits that the petitioner has an efficacious and alternative remedy under the UP-. Industrial Disputes Act, 1947 in view of Chandrama Singh v. Managing Director, U.P. Co-operative Union Lucknow and Ors. (1991) UPLBEC (2)-898.
In rebuttal the counsel for the petitioner submit that in a similar matter i.e. Civil Misc. Writ Petition No. 9585 of 2006 Mangal Singh v. Managing Director UPSRTC, Lucknow and Ors. which was dismissed by this Court vide order dated 16.2.2006 on the ground of availability of alternative remedy before the Labour Court. The aforesaid order dated 16.2.2006 was challenged in Special Appeal No. 293 of 2006 before the Division Bench. The order dated 16.2.2003 was set aside vide order dated 30.3.2006 and the matter was remanded for a fresh consideration on merits.
The order dated 30.3.2006 is as under;:
None for the respondents. The impuoned order dated 16.2.2006 passed by Hon'ble Single Judge is set aside. Since the writ petitioner was not approaching the Court in regard to deemed industrial Dispute under Section 2-A of the U.P. Industrial Dispute Act, 1947, sending him before the Labour Authorities was not an adequate alternative remedy. The complaint of the writ petitioner was against withholding of promotion. As such, the matter is remanded for a fresh consideration on merits.
It appears that the Division Bench was mislead by the fact that the matter falls under Section 2-A of the U.P Industrial Dispute Act 1947 which pertains to dismissal etc. of an individual workman to be deemed to be an industrial dispute. Section 2-A of the Act is as under:
2-A Dismissal etc, of an individual workman to be deemed to be an industrial dispute- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman any dispute or difference between that workman and his employer connected with or arising out of such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial notwithstanding that no other workman nor any union of workman is a party to the dispute.
The matter in that case was not of dismissal from service falling under Section 2-A of the Act but was a case of promotion. That matter could be referred under Section 4-K of the Act.
9. It is clear from perusal of item 6 of the First Schedule and item No. 7 of the Second Schedule appended to the UP. Industrial Disputes Act, 1947 that UP. Industrial Disputes Act, 1947 not only govern the dispute relating to dismissal, discharge or termination but also covers adjudication of dispute mentioned therein including promotion, classification of grade or promotion or payment of higher pay.
10. In my opinion, the question whether the petitioner was unfit or not for promotion and whether respondent Nos. 4, 5 and 6 were qualified for being promoted or not, are disputed questions of facts which require adjudication on the basis of oral and documentary evidence by the Labour Court as it is not feasible for this Court to record oral and documentary evidence under Article 226 of the Constitution and give findings of facts thereafter.
11. For the reasons stated above, the writ petition dismissed on the ground of availability of alternative remedy. No order as to cost.