A.P. Singh, J.@mdashVishnu Narain Gupta, the petitioner, who happened to be manager of a cinema hall known as Imperial Cinema, Kanpur, owned by a private firm with Sri K.N. Garg as one of the partners, has approached this Court by means of the present writ petition filed under Article 226 of the Constitution of India for quashing of his termination order dated 29.2.96 and for restraining opposite party (O.P. No. 3 cinema owner) not to interfere in petitioner''s functioning as Manager of the cinema hall and further for payment of his salary.
2. On an ex pane motion made by the petitioner to this Court following order was passed on 1541996:
"Notice on behalf of the opposite party Nos. 1 and 2 has been accepted by the learned Chief Standing Counsel.
Issue notice to respondent No. 3, returnable at an early date.
In the meantime opposite party No. 2 shall dispose of the representation of the petitioner contained in Annexure 5 to the writ petition within one month from the date a certified copy of this order along with the copy of the representation is produced before him.
Till the disposal of the representation the order dated 29.2.1996 contained in Annexure 1 to the writ petition shall not be given effect to. The petitioner is directed to serve a copy of this order along with copy of the representation as mentioned above within ten days from today."
By virtue of that order petitioner, as per the allegation of opposite party No. 3, Eetitioner had to be paid his salary despite is services having been terminated and relationship of master and servant between O.P. No. 3 and petitioner having snapped with effect from 29.2.96.
3. In the writ petition petitioner projected that his services were governed by the model standing orders which have been framed under the provisions of Industrial Employment (Standing Orders) Act, 1946 and since no enquiry and disciplinary proceedings were held before his services were terminated by opposite party No. 3, therefore, the order of termination was per se illegal which justified his filing of writ petition under Article 226 of the Constitution of India. Petitioner, however, did not give any fact in the writ petition as to how the model standing orders are applicable to him in his capacity as Manager of the Cinema Hall. He did not give the number of employees who were working in the cinema hall though for attracting the provisions of the 1946 Act, the establishment concerned must have a certain number (100) of employees (workmen) working in it.
4. Petitioner also stated in the writ petition that he filed a representation against the order of termination of his services before the Additional Labour Commissioner, Kanpur, Opposite party No. 2, who according to the petitioner paid no heed to his representation hence according to the petitioner he was compelled to file the writ petition. Under which provision of law petitioner had the right to file application/representation before opposite party No. 2., and under which provision of law opposite party No. 2 possessed the power to interfere and set aside / quash the order of termination of petitioner''s services have not at all been indicated in the writ application, this Court, however, granted (passed) the interim relief order dated 15.4.96 with the result opposite party No. 3 was compelled to pay him salary obviously under the threat of contempt proceedings.
5. Labour Commissioner or Labour Courts have jurisdiction in the matter of termination of services of a workman of an industrial establishment in exercise of powers conferred by U.P. Industrial Disputes Act, 1947.
6. Most essential ingredient for applicability of the provisions of U.P. Industrial Disputes Act, 1947 is that the applicant are the person aggrieved must be a workman as per the definition given under Section 2 (5) of that Act.
7. According to the definition of the word "workman1 a person employed in an industry for doing any manual, skilled, unskilled, technical, operational, clerical or supervisory work for higher or reward alone is recognised as workman for whose, who are subject to defence services, police or prison services, or are employed in managerial or administrative capacity or if employed in supervisory capacity is drawing wages over Rs. 600 per month or exercises managerial powers by nature of duties.
8. In his writ petition, petitioner himself has set up the case that he is employed as the manager of respondent No. 3. By virtue of the post held by petitioner he cannot claim to be a workman as per the definition of the word in Section 2(5). Petitioner, however, has tried to add colour to his case by saying that as Manager of the Cinema hall he has also been performing manual work. What manual work was being performed by the petitioner in his capacity as manager of the cinema hall involving manual work have too not been indicated by him in the writ petition. Therefore, in absence of the necessary facts in that regard it cannot be believed that petitioner in performance of his duties as manager of the cinema hall falls within the purview of the word ''workman'' as defined by Section 2(5) of the Act.
9. By virtue of his appointment itself as manager of opposite party No. 3, petitioner does not come within the definition of the term ''workman'' as it has been defined either in the Industrial Disputes Act, 1947 or in the U.P. Industrial Disputes Act, 1947. Petitioner not being a workman cannot lawfully avail the services of opposite party No. 3 or of the labour Court or of the industrial tribunal which have been constituted as a forum for the redressal of service related grievances of workmen. Petitioner''s representation which he allegedly filed before opposite party No. 2, thus, deserved to be totally ignored by opposite party No. 2 who in my opinion rightly did not take any notice of the same.
10. In S.K. Maini v. Mis. Corona Sahu Ltd. and others, the Supreme Court held that a shop manager who was also required to do work of a clerical nature (as part of his duties) did not cease to be manager 1994(68) FLR ll0l(SC).
11. Now it is turn to see petitioner''s plea regarding applicability of the Industrial Employment (Standing Orders) Act, 1946.
12. As per clause (3) of Section 1 of this Act, the Act has application to every industrial establishment wherein 100 or more workmen are employed on any day of preceding three months; however, power is kept reserved, under the proviso of clause (3) with the State Government to apply the provisions of the Act by issuing Notification in the Gazetted to any industrial establishment employing as many number of workmen as may be specified in the Notification which may be less than 100 workmen. Nothing in the writ petition has been stated by petitioner as to whether in respect of opposite party No. 3 any Notification under proviso to clause (3) of Section 1 has been issued. What is the number of workman employed in the cinema house by opposite party No. 3 too has not given in the writ petition. In the above context it is apparent that the provisions of 1946 Act too have no applicability to the cinema house (opposite party No. 3) where the petitioner, was employed, therefore, the provision of the Model Standing Orders too are inapplicable to the petitioner.
13. Under Section 3 of the Act employer of every industrial establishment which is governed by the provisions of the Act is under obligation to submit within six months to the certifying officer a draft Standing Order which he proposes to apply to his industrial establishment for certification and registration of the Standing Orders under Section 5 of the Act. After certification the Standing Order comes into operation on a date as provided under Section 7. Section 12 authorises applicability of the Model Standing Orders only for a limited period (between the date on which the provision of the Act become applicable to the industrial establishment and the date on which the certified Standing Orders become applicable). Application of Model Standing Orders cannot therefore be permanent feature; it has application, as observed above only during a limited period; which has been indicated hereinabove.
14. In case, the proposed Standing Orders are not submitted for certification before the Certifying Officer as required by Section 3 of the Act, the employer incurs the penal liability under Section 13 of the Act.
15. In the writ petition nothing has been stated as to how the Model Standing Orders are applicable in Cinema House (opposite party No. 3). In the absence of relevant facts as to submission of proposed standing orders for certification before the Certifying Officer by the employer as per the requirement of Section 3 petitioner cannot raise the plea of the applicability of the model standing orders to govern his service conditions. Petitioner has thus, failed to make out any case for interference by this Court or even by the Labour Commissioner or by the Labour Courts etc. against the order of termination of his services by opposite party No. 3.
16. Otherwise also being employee of a private cinema house petitioner has remedy in the common law and not under Article 226 of the Constitution.
; 17. A writ under Article 226 of the Constitution would not issue against a private party (here O.P. No. 3) unless that party is under some statutory duty towards the applicant in respect whereof the concerned applicant has a statutory right to seek performance of that duty from the respondent.
18. Nothing has been indicated in the writ petition by the petitioner as to which statutory right of his (sic) has been breached due to nonperformance of the statutory duty (if any) by O.P. No. 3. The cover of the Model Standing Orders under which petitioner has filed the writ petition too cannot be pressed in his aid. Filing of writ petition by petitioner for seeking relief. Attempt made by petitioner was to somehow procure favorable orders under the facade of the nonperformance of the statutory duty by opposite party Nos. 2 and 3, though none of them have to perform any such duty as against the petitioner; petitioner is thus guilty of abusing the process of the Court by filing a wholly misconceived writ application which on its face was not maintainable.
19. The writ petition is accordingly dismissed with costs which in the circumstances is assessed at Rs. 3,000 with the direction that respondent No. 3 shall be entitled to recover the amounts which have been paid by it to the petitioner under the expane interim order dated 15.4.1996 which was passed in the writ petition by this Court, the exparte stay order shall stand discharged.
