ORDER
Jagat Narayan, C.J.
1. This petition under Article 226 of the Constitution has been referred for decision to a Division Bench by a learned single Judge of this Court along with some other similar writ petitions including Hem Dutt Mathur v. The State of Rajasthan and Ors. (D.B. Civil Writ Petition No. 416/1967) and Achal Das v. The Municipal Council, Jodhpur and Anr. (D.B. Civil Writ Petition No. 10 of 1969).
2. The material facts which appear to have been established from the record are these. Mohan Lal, petitioner, was born on 2-1-1914. He joined Government service under the erstwhile State of Jodhpur as clerk, Pholdi Municipality in 1936. In 1940 he was transferred to Jodhpur Municipality. These Municipalities were departments of the State at that time and he was governed by the Jodhpur Government Service Regulations under which a Government servant was required to retire from service on attaining the age of 55 years. The Jodhpur Municipal Act was framed in 1943 and it made the Jodhpur Government Service Regulations applicable to officers and servants of the Jodhpur Municipality. This did not make any change in the service conditions of the petitioner as he was already governed by the Jodhpur Government Service Regulations. Since however he ceased to be a Jodhpur Government servant on the coming into force of the Jodhpur Municipal Act, 1943 he was governed by the Jodhpur Government Service Regulations only by virtue of the provisions of Section 66 as contained in the Jodhpur Municipal Act, 1943 which read as follows:--
Application of the Jodhpur Government Service Regulations to the Municipal Servants.--The Jodhpur Government Service Regulations will apply to all officers and servants of the Municipality.
3. The legal effect of this change was that the Jodhpur Government Service Regulations as they stood in 1943 were applicable to the petitioner with effect from the coming into force of that Act and future amendments of these regulations were not applicable to him. In this connection we may refer to the decision of their Lordships of the Supreme Court in D. Shama Rao v. The Union Territory of Pondicherry [1967] 20 S.T.C. 215 (S.C.).
4. By an order dated 6-12-48, Regulation 8 of the Jodhpur Government Service Regulations was amended so as to raise the age of superannuation to 58 years. This amendment was not applicable to the petitioner with the result that his age of superannuation continued to be 55 years under Regulation 8 of the Jodhpur Government Service Regulations as it stood in 1943. In March 1949 Jodhpur State was integrated with Rajasthan and the Jodhpur Municipal Act, 1943 was continued in force by virtue of the provisions of the Rajasthan Administration Ordinance No. 1 of 1949. The age of superannuation of the petitioner thus continued to be 55 years after the formation of Rajasthan.
5. The Rajasthan Municipalities Act 1959 came into force with effect from 17-10-59. Under Section 2 of this Act, the Jodhpur Municipal Act, 1943 was repealed, and the Rajasthan Act became applicable to the Jodhpur Municipality. Under Section 297 of this Act, power was given to the State Government to prescribe the conditions of service of municipal servants including the fixation of the age of superannuation.
6. The Rajasthan Municipal Service Rules 1961 came into force in March 1961.
Rule 34 of these rules ran as follows:--
34. Regulation of pay, allowances, leave, pension, gratuity, provident fund, discipline, conduct etc.--Subject to the provisions of Sub-section (4) of Section 307 and except as provided in these rules the pay, allowances, pension, leave and other conditions of service of the members of the service shall be regulated by rules made under Section 297 of the Act, and pending the issue of such rules, by the following rules--
(1) The Rajasthan Service Rules, 1951 (except provisions relating to pension and payment of medical allowances) as amended from time to time.
(2) Rajasthan Travelling Allowance Rules as amended from time to time.
(3) Rajasthan Civil Service (Classification Control and Appeal) Rules, 1958 as amended from time to time.
7. The Rajasthan Municipal Civil Service Rules, 1961 were superseded by the Rajasthan Municipal Service Rules 1963 which contained a provision similar to the above in Rule 35.
8. The age of superannuation is prescribed by the Rajasthan Service Rules, 1951. The age of superannuation was raised from 55 years to 58 years in the Rajasthan Service Rules, vide Finance Department's Notification No. F. 1(84) F.D.A. (Rules) 62 dated 31-8-63 by making a suitable amendment in Rule 56. This rule was again amended under Notification No. F. 1(42) FD/Exp-Rules/67-I dated 13th June, 1967 and the age of superannuation was reduced to 55 years.
9. On 22nd June, 1967 the Local Self-Government Department Notification No. Tax (Rules)/F. 53 (Misc)/DLB/63 dated 22-6-67 was issued in exercise of the power conferred under Section 297 of the Rajasthan Municipalities Act, 1959 making Notification No. F. 1(42)FD/ Exp-Rules 67-I dated 13-6-67 along with instructions as contained in the Notification No. F.1(42)FD/Exp-Rules/67-II dated 13th June, 1967 applicable to the Municipal employees except Class IV servants.
10. The petitioner was to attain the age of 55 years on 2-1-69. A notice dated 4-9-68 was accordingly served on him informing him that he will be retired on 2-1-69 on attaining the age of superannuation. The petitioner thereupon filed the present writ petition on 18-11-68. It was admitted by a learned single Judge, and the State of Rajasthan and the Municipal Council, Jodhpur, were restrained from carrying out the order of retirement of the petitioner till the disposal of the writ petition.
11. The case of the petitioner is that the Industrial Disputes Act, 1947 and the Industrial Employment (Standing Orders) Act, 1946, came into force in Rajasthan in 1950 and the Jodhpur Municipality is an 'industry' as defined under Section 2(j) of the Industrial Disputes Act, 1947. Further the petitioner being an employee in this 'industry' was a 'workman' within the meaning of Section 2(s) of that Act. His further case is that the Municipality was an 'industrial establishment' within the meaning of Section 2(e) of the Industrial Employment (Standing Orders) Act, 1946 and as no standing orders were framed and got certified as provided in this Act the petitioner is not governed by any age of superannuation and he has a right to continue in service till he is physically and mentally fit.
12. The petition has been contested on behalf of the Municipal Council, Jodhpur, as well as the State of Rajasthan.
13. It will be seen that the petitioner came to this Court on the allegation that the right accrued to him under the industrial law has been infringed. We may say at once that his writ petition should not have been entertained on this ground. He should have been left to seek redress under the industrial law which created the right which is said to have been infringed and which provides for suitable machinery to deal with such cases. Under the industrial law it is not every case of an industrial dispute that the Government is bound to refer to an authority or Tribunal created under the Industrial Disputes Act. They may or may not refer a particular dispute. It is a question of expediency of which the Government is the sole judge. If every workman whose industrial right is infringed is allowed to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution the safeguards which the Legislature thought fit to legislate along with the rights so created will be rendered nugatory.
14. Since, however, the case has been argued at length before us we proceed to give a decision on merits. In order to find out whether the petitioner is a workman, it is necessary to see whether the department of the Municipality in which he was working was an 'industry' within the meaning of the Industrial Disputes Act. There are 3 reported decisions of the Supreme Court relating to Municipal Corporations namely, D.N. Banerji v. P.R. Mukherjee : [1953]4SCR302 , Baroda Borough Municipality v. Its Workmen : (1957)ILLJ8SC , and Nagpur Corporation v. Its Employees : (1960)ILLJ523SC . We have been taken through these decisions by the learned Counsel for the parties and our conclusion is that in order to determine whether a particular department of the Municipality is an 'industry' or not, the predominant activities of that department are to be considered. Regal functions are primary and inalienable functions of the State and though they may be statutorily delegated to a corporation they are necessarily excluded from the purview of the scope of the term 'industry'.
15. The petitioner is admittedly employed as Secretary, Jodhpur Municipal Council. Under Section 307 of the Rajasthan Municipalities Act, 1959 the State Government is required to appoint a Commissioner for every council but a council may decide to appoint a Secretary in addition to the Commissioner. Section 307 deals with administrative officers. The duties of the Secretary of the Municipal Council are administrative. The petitioner therefore falls in our opinion within exception (iii) contained in the definition of 'workman' given in Section 2(s) of the Industrial Disputes Act, 1947, namely 'who is employed mainly in a managerial or administrative capacity'. The petitioner cannot therefore be treated as a workman.
16. There is another aspect of the matter. According to the petitioner his duties are enumerated in annexure 3 of the petition as follows:--
1. He shall work as Secretary to the Appellate Committee of the Council.
2. To prepare and submit to Commissioner annual administrative report for submission to the Council.
3. Supervision of general section including Municipal stores and Municipal record.
4. Preliminary peshi work (case work) of unauthorised construction and encroachment etc.
5. Enquiries if and when allotted by the authorities.
The exercise of appellate powers is a regal function and the performance of duty No. 1 does not make the petitioner a workman. In the same way duties Nos. 4 and 5 relate to regal functions of the Municipal Council. Duty No. 3 is purely supervisory. Duty No. 2 is to prepare and submit to the Commissioner annual administrative report for submission to the Council. This is also assistance in supervisory functions. In this view of the matter the predominant duties of the petitioner are connected with the regal functions of the Municipal Council. Duty No. 3 is supervisory and as the petitioner draws 'wages' amounting to more than Rs. 500/- per month he cannot be regarded as a 'workman' under exception (iv) to Section 2(s) namely, 'who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem.' We accordingly hold that the petitioner is not a workman within the meaning of the Industrial Disputes Act.
17. Further, as was held by us in Achal Das v. The Municipal Council, Jodhpur (D.B. Civil Writ Petition No. 10 of 69), the judgment of which was delivered today, the Industrial Employment (Standing Orders) Act, 1946, would not apply to the petitioner because of Section 13B of the Act. Under Rule 36 of the Rajasthan Municipal Service Rules, 1963 the Rajasthan Service Rules, 1961, the Rajasthan Travelling Allowance Rules and the Rajasthan Civil Service (Classification, Control and Appeal) Rules 1958, are applicable to all Municipal employees at present. So long as such rules are applicable to them nothing in the Industrial Employment (Standing Orders) Act, 1946 shall be applicable to Municipal employees. As was stated in Achal Das v. The Municipal Council, Jodhpur, (D.B, Civil Writ Petition No. 10 of 1969) the reason for this exemption obviously is that Government framed rules to regulate the conditions of service of its employees after having due regard for their welfare and the Legislature does not consider it necessary to get them certified as being fair and reasonable by a certifying officer.
18. Another contention put forward on behalf of the petitioner is, that the Rajasthan Municipal Service Rules, 1961 or 1963 cannot apply to the petitioner as he has not yet been integrated in that service. A notification dated 15-5-69 appeared in the Rajasthan Gazette dated 16-5-69 under which the Rajasthan Municipal Service was created and constituted by the Government under Section 302 of the Rajasthan Municipalities Act, 1959 with effect from 1-4-60. The petitioner who was holding the post of Secretary, Municipal Council since 1-4-60 is bound to be fixed by the process of integration in one of the grades for which he is considered suitable by the Government. When he is so fixed he shall be paid all arrears of salary in accordance with the fixation. We are unable to accept the argument that so long as he is not fixed in one of the grades the Rajasthan Municipal Service Rules, 1961 or 1963 will not be applicable to him. There is a specific provision under Section 297 of the Rajasthan Municipalities Act enabling Government to fix the tenure of service of Municipal employees and in exercise of this power Rule 56 of the Rajasthan Service Rules was made applicable both when the age of superannuation was 58 under it and when it was 55 under it. It was 55 in 1961 and again in 1967. It was 58 in 1963. The petitioner was thus governed by the age of superannuation fixed by the Government, in exercise of the power under Section 297 of the Rajasthan Municipalities Act and he was rightly ordered to be retired with effect from 2-1-1969.
19. The writ petition is accordingly dismissed and the stay order passed in the case is discharged.