JUDGMENT :

1. Heard Sri Vivek Mishra, learned counsel for petitioner as well as Sri Mudit Agarwal, learned counsel for respondent No. 1 and learned Standing Counsel for respondent No. 2.

2. The grievance raised by the petitioner is with regard to order dated 05.12.2000 passed by Dy. Labour Commissioner, Lucknow Region, Lucknow thereby declining to refer the dispute raised by the petitioner for adjudication before the Labour Court in exercise of powers under Section 4 (K) of U.P. Industrial disputes Act, 1947.

3. The facts in brief of the present case are that petitioner was working with respondent No. 1 on the post of Supervisor w.e.f. 1993 and claims to be covered within the definition of workman as provided under Section 2(Z) of the U.P. Industrial Disputes Act, 1947.

4. The grievance of the petitioner is that he was dismissed from service on 04.02.1998 illegally and arbitrarily and in violation of provisions of Section 6(N) of the Act of 1947. Being aggrieved by his dismissal, the petitioner had moved an application before the Prescribed Authority/Conciliation Board on 15.04.1998. On the basis of the said application, conciliation proceedings were initiated and the matter was referred to the Conciliation Officer.

5. It is submitted that no settlement was arrived at between the petitioner and respondent No. 1 in conciliation proceedings and consequently the Assistant Labour Commissioner by means of order dated 26.06.1999, it was recorded that there were several allegations against the petitioner with regard to financial misappropriation and for being negligent in discharging of his duties consequent to which disciplinary proceedings were initiated and after giving adequate opportunity of hearing he was dismissed from service and the Conciliation Officer recorded that there was no ground on which he can be reinstated in service. The said order dated 26.06.1999 has been annexed by the petitioner in supplementary rejoinder affidavit as Annexure No. 4. It seems that the said report of the Conciliation Officer was sent to the State Government for proceedings in terms of Section 4(K) of the U.P. Industrial Disputes Act, 1947 but by means order dated 05.12.2000, the Dy. Labour Commissioner, Lucknow in a very cryptive manner has stated that the case of the petitioner has not been found to be suitable to be referred to the Dy. Labour Commissioner, Lucknow.

6. Learned counsel for petitioner has submitted that the said order is illegal and arbitrary as no reasons have been assigned for declining to refer the matter for adjudication to the Labour Court. He further submits that the petitioner being a workman and the respondent No. 1 being an industrial undertaking and the matter pertaining to the dismissal of the petitioner is squarely covered under the provisions of Section 6(N) of the Industrial Disputes Act, 1947 and consequently once it is seen that all the ingredients as stated above are fulfilled then there is no discretion with the respondents except the matter refer the dispute for adjudication before the Labour Court. Despite repeated opportunities, the State has not filed any counter affidavit. The employer, namely Tata Engineering & Locomotive Company Limited contested the matter by filing a counter affidavit.

7. It has been submitted that power under Section 4(K) of the Act of 1947 is an administrative power and is subjected to limited judicial scrutiny. It has also been submitted that the petitioner was a Supervisor and consequently his claim would not be entertainable before the Labour Court inasmuch as he does not fall in the definition of workman and hence there is no infirmity in the impugned order dated 29.08.1990 of the State Government declining to refer the matter for adjudication to the Labour Court. In support of his submissions, learned counsel for has relied upon the judgment of Prem Kakkar Vs. State of Haryana 1976 (3)SCC 433.

8. I have heard learned counsel for parties and perused the record.

9. The petitioner claiming