Guman Mal Lodha, J.
1. The prayer of the petitioner is that
I. By an appropriate writ, order or direction, the respondent's may be restrained from giving effect to the Notice of change in service conditions dated 24-4-1951 (Ann. 4) and the same may be declared to be ineffective qua the petitioner.
II. Further by an appropriate writ, order or direction it be declared that the Industrial Employment (Standing Orders) Act, 1946 and the Rules made thereunder are not applicable to the workmen of the Respondent No 1 and the respondents may be directed not to take any action in regard to the workmen of the Sangh by taking resort to the said Act.
2. It is alleged that by Annexure 3, the provision's of the Rajasthan Service Rules, were made applicable to the petitioner till separate Service Rules are not framed. According to these Rules, certain leaves can be taken by the workmen. On 24th April, 1981 order (Annexure 4) supersedes the earlier leave provisions because now holidays have limited to eight.
3. The case of the petitioner is that since a right to avail a large number of holidays was available to the petitioner on account of the Rajas-than Service Rules, this right carinot now be divested. If it is divested then it results in retrospective operation which cannot be given.
4. The petitioner also contends that this order (Annexure 4) is under Section 9A of the Incustrial Disputes Act and since it is an executive order, it cannot be given no retrospective effect.
5. It was then argued that the Industrial Disputes Act, 1946 is not applicable to the petitioner. Shri Singhvi, the learned Counsel for the petitioner, pointed out that the petitioner's employment is not covered by the Indian Industrial Establishment as per the Industrial Employment Standing Orders Act, 1946. If is not Industrial Establishment argued Shri Singhvi, as defined under Section 2(m) of the Factories Act.
6. Then, it was argued that a decision was taken by the resolution of the General Body of the respondent-Sangh, dated the 17th November, 1977 to transfer the assets and liabilities with respect to dairy plant and chilling centres to the Rajasthan Cooperative Dairy Federation Ltd., Jaipur along with the staff working in connection with the said dairy plant and chilling centres and cognate activities. This transfer has been accepted in a meeting dated the 27th June, 1979 and has become effective from 1st July, 1979. The decision was approved by the Managing Director of the Corporation which has got the rower of the Registirar, Rajasthan Cooperative Societies vide an order dated the 28th June, 1979 (Annexure 1).
7. After this, the only activities that the respondent is to collect milk from various sources. On account of this transfer, a number of workmen to remain in the service of the respondent No. 1 stands reduced to 77 only.
8. In support of the above contention, Shri Singhvi has relied upon a number of decisions.
9. However, I find that it is not necessary to decide all these points because petitioner's petition is not maintainable for the reasons mentioned here under.
(1) This matter is pending adjudication before the Industrial Tribunal and therefore, this writ petition is not maintainable.
(2) In this connection, the petitioner has produced document at page 78 (Ex. Rule 10), dated the 8th December, 1980.
10. Shri Singhvi submitted that this objection is not maintainable because reference has been made to the Industrial Tribunal by assuming that the Industrial Employment Standing Orders Act, 1946 is applicable to the workmen. I am of the view that whether assumption is correct or not can be debated before the Industrial Tribunal and not here.
11. I am convinced that since the same is pending before the Industrial Tribunal it cannot be made subject matter of writ petition.
12. Second objection of the respondent is equally relevant. The Jaipur Dugdh Vitran Karamchari Sangh filed a writ petition and this Court, at Jaipur Bench, had an occasion to consider the question of alteration of leave. In Jaipur Dugadh Vitran Karamchari Sangh v. State of Rajasthan and Ors. (S B. Civil Writ Petition No. 1726/1980, decided on September 15, 1981), it has been held as under:
As such the employer is entitled to change the service conditions, so far as they relate to a matter specified in the IV Schedule after giving 21 days notice of its intention to change the service conditions. It was argued by the learned Counsel that the agreement should continue to hold good so long as there was no further agreement and the decision of their Lordships of the Supreme Court in The Life Insurance Corporation of India v. D.J. Bahadur and Ors. 1980 Lab. I.C. 1218 was relied upon. The question of alteration in the agreement in the present case does not arise because the agreement of 1978, which is relied upon by the petitioners, only provides that merely because of the change of the employer the service conditions should not be changed. No change was effected merely because the petitioners became the employees of the Federation instead that of the Corporation. But after the petitioners became employees of the Federation the service conditions are to be governed by the provisions of the Industrial Disputes Act, as the employees are workmen and the Jaipur Milk Supply Scheme is an industry and the provisions of Section 9A of the Industrial Disputes Act can be pressed into service, subject to the conditions specified therein.
13. The above decision is in respect of applicability of Section 9A of the Industrial Disputes Act and it has been held that under Section 9A of the Industrial Disputes Act, the service condition can be changed.
14. I am, therefore, of the opinion that the petitioner cannot be allowed to avail the remedy of the writ petition during the pendency of the reference before the Industrial Tribunal on the same subject matter. The petitioner can agifate all these objections which he is doing here, before the Industrial Tribunal.
15. In view of the above, I am not deciding whether a writ petition is maintainable by Cooperative Society even though a preliminary objection has been raised by the non-petitioner, that the petitioner is not a statutory body under Article 12 of the Constitution of India and this objection is sought to be supported by the following decisions: Khoday Brewing and Distilling Industries Pvt. Ltd. v. State of Karnatka and Ors. AIR 1982 NOC 98 (Kart) Chakradhar Pate I v. Samasingha Service Co-operative Society Ltd and Ors. : (1982)ILLJ381Ori
16. The result is that the above writ petition fails and is hereby dismissed without any order as to costs.