The writ appeal and writ petitions arise out of the same issue and, therefore, they are dealt with together and disposed of by this common order.
2. For appreciation of the case, we refer to the averments made in W.P. No.15777 of 1989. The 2nd respondent was appointed as statistical quality controller (in short SQC) in the petitioner on 12.10.1981. He was initially put on probation for a period of one year. On completion of probation, he was confirmed with effect from 1.12.83 by confirmation order dated 8.12.83.
3. On 21.6.85, an advertisement was made by the petitioner calling for applications for the post of labour welfare officer (in short LWO). Pursuant to the said advertisement, the 2nd respondent applied on 27.6.85. He was selected and was appointed by order dated 5.9.85. As the contents of the order requires consideration for disposal of these matters, the same is extracted as hereunder :-
"Mr.P.Subbarayan, B.Com., P.G.D.P.M.
The Kasthuri Mills Ltd.
Coimbatore - 641 016.
Re : Your application for the post of -
Labour Welfare Officer
The management is pleased to inform you that your request for the post of Labour Welfare Officer is conceded taking into account of the requisite qualifications that you have possessed and you have done well at the time of interview.
Hence you are transferred to the post of Labour Welfare Officer the with effect from 5th September, 1985. You are to continue to attend the existing duties being performed by you and also to the duties that are assigned to you now and then by and at the discretion of the management.
The status quo will continue and there is no change in the scale of pay and other benefits.
The Management wishes you the best.
For THE KASTHURI MILLS LTD.
4. On 16.1.86 the petitioner wrote to the Joint Chief Inspector of Factories, Coimbatore, for approval of the appointment. Considering the request, the Joint Chief Inspector of Factories sent a reply dated 23.1.86 to the petitioner. As the contents of the said communication is sought to be interpreted differently by either counsel, we reproduce the same as hereunder :-
"D.Sis.8074/85 Office of the Joint Chief Inspector of Factories, Coimbatore, dt: 23.1.86
Thiru P.Rajaram Grad.I.E. The Manager
Joint Chief Inspector of The Kasthuri Mills Ltd.
Factories, Sivananda Colony Ondipudur Post
Coimbatore. Coimbatore - 641 016.
Sub : Factories Act 48 and Tamil Nadu Factories (Welfare Officer) Rules 1953 - Appointment of Thiru P.Subbarayan - Labour Welfare Officer - Approval regarding.
Ref : 1. Letter No.B/5907Rs85 dt: 14.10.85 of the Deputy Chief Inspector of Factories, Tiruppur.
2. Your letter dt: 16.1.86.
With reference to the above letters cited, I wish to inform that the appointment of Thiru P.Subbarayan as Labour Welfare Officer in your factory with effect from 5.9.85 is in accordance with the Tamil Nadu Factories (Welfare Officer) Rules, 1953.
For Joint Chief Inspector of Factories
5. On 30.4.88 an office order was passed by the petitioner posting the 2nd respondent as SQC In-charge with effect from 2.5.88. Since much argument also is also advanced on this office order, the same is extracted hereunder :-
"kml/ /88-89 30th April 1988
Kasthuri Mills Ltd.,
As your services are required in the SQC Department, you are posted as SQC In-charge with effect from 2-5-1988. You will continue to enjoy the same pay and other benefits which you have been enjoying so far. You will continue to be in the grade of Junior Plus with Dearness Allowance as applicable to other staff members with all statutory benefits. You are advised to report to the SQC Department with effect from 2.5.1988.
For THE KASTHURI MILLS LTD.
6. On 9.5.88 the 2nd respondent was issued with a show cause notice of insubordination with the Manager of the petitioner. A further show cause notice with the same date was also issued for the alleged misconduct on the part of the 2nd respondent with an attender. The 2nd respondent was also served with an order of suspension dated 18.5.88 pending enquiry into the above misconducts. The 2nd respondent by his letter dated 13.6.88 appealed to the Commissioner of Labour, the appellate authority under the Tamil Nadu Factories (Welfare Officers) Rules, 1953, (hereinafter called the Rules), treating the order dated 30.4.88 as one of termination. The said letter was replied by the first respondent intimating the 2nd respondent that it is not an order of termination and, therefore, the 2nd respondent may invoke the appeal provision, if found necessary as and when any final orders are passed. A further appeal dated 8.8.88 was also made by the 2nd respondent once again requesting the Commissioner of Labour to take appropriate action on his appeal.
7. The enquiry proceedings pursuant to the show cause notice dated 9.5.88 were also proceeded simultaneously and on the basis of the proved misconducts, the 2nd respondent was dismissed from service on 15.11.88. The appeals preferred by the 2nd respondent was considered by the Commissioner of Labour in his order in T.N.F. (W.O.) R.A. 1/88 dated 23.10.89. By the said order the Commissioner of Labour ultimately came to the conclusion that the petitioner engages more than 500 workers and, therefore, it should appoint a labour welfare officer. Accordingly, the 2nd respondent was appointed and the order dated 30.4.88 shall be either considered as discharge or termination as under the Rules no labour welfare officer should be divested of his post to any other post, much less, a non-statutory post, as the said post was created under a statute. This order is questioned in W.P. No.15777/89.
8. Pursuant to the order of the Commissioner of Labour dated 23.10.89, the 2nd respondent approached the Chief Inspector of Factories for implementation of the said order and for a further direction to take action against the petitioner for not obeying the orders of the Commissioner of Labour. This request was rejected by the Chief Inspector of Factories in his proceedings dated 29.8.91 on the ground that the application for approval for termination is pending before the industrial tribunal in Application No.141/98. The petitioner, therefore, filed W.P. No.16299/91 before this Court questioning the said order of the Chief Inspector of Factories. This Court by order dated 3.12.93 set aside the order of the Chief Inspector of Factories dated 29.8.91 and remitted the matter to him for reconsideration as to whether sanction could be accorded under Section 105 of The Factories Act. Questioning the said order, the management has filed W.A. No.1486/93.
9. As against the order of dismissal dated 15.11.88, the 2nd respondent raised a dispute in I.A. No.296/90 before the Labour Court, Coimbatore. By award dated 13.5.93 the Labour Court, while rejecting the challenge to the order of dismissal, modified the punishment of dismissal into one of discharge with a further award of Rs.10,000/=. Questioning the said award the petitioner has filed W.P. No.2686/94. Simultaneously, the 2nd respondent also has filed W.P. No.1365/94 insofar as that portion of the award affecting his rights was concerned.
10. As we have already indicated, the disposal of W.P. No.15777/89 will have a bearing on all other writ petitions and the writ appeal, we first take up W.P. No.15777/89 for consideration and disposal. Mr.A.L.Somayaji, learned senior counsel appearing for the petitioner would question the order of the Commissioner of Labour dated 23.10.89 basically on the following grounds :-
"i) The first respondent committed a serious error in holding that the appointment of the 2nd respondent was in terms of the provisions of The Factories Act and the Rules made thereunder and, thereby, treated the 2nd respondent as a Labour Welfare Officer.
ii) In any event, the Commissioner of Labour failed to take into consideration of the report of the Chief Inspector of Factories dated 13.2.89 certifying that the petitioner has less than 500 ordinary employees and the provisions of The Factories Act are not applicable.
iii) Thirdly, in any case, the appeal preferred by the petitioner was only with reference to the earlier order dated 8.8.88.
iv) In the absence of any further appeal preferred by the 2nd respondent after the order of termination was made on 15.11.88, the 2nd respondent ought not to have considered the validity of the order of termination in the absence of any appeal.
v) In any case, the Commissioner of Labour had not considered the proved misconduct to sustain the order of termination on merits."
11. Mr. N.G.R. Prasad, learned counsel appearing for the 2nd respondent would on the other hand submit that the post of Labour Welfare Officer is created by virtue of the powers conferred under Section 49 of the Act. The 2nd respondent was appointed in the said post. By virtue of the appointment, the 2nd respondent must be deemed to have been appointed in a statutory post. Such a post cannot be divested and the 2nd respondent cannot be posted in any other post. By order dated 30.4.88 the 2nd respondent was posted as SQC In-charge with effect from 2.5.88 and was completely absolved of his statutory duties attached to the post of labour welfare officer under the Rules.
12. In support of the above submission, the learned counsel for the 2nd respondent would heavily rely upon the judgment of the Division Bench of this Court in P.Madhavan Vs. Binny Ltd. reported in 1992 (1) LLN 574. In order to controvert the submission of the learned senior counsel for the petitioner placing reliance on the report of the Joint Chief Inspector of Factories dated 13.2.89, the learned counsel for the 2nd respondent drew our attention to pages 166, 167, 171, 174, 177, 178, 180 and 184 of the typed set filed in the writ appeal and contended that the petitioner had engaged more than 500 employees from 1.4.85 to 30.9.88 and, hence, the petitioner was required to appoint a labour welfare officer.
13. In reply to the above submissions, Mr.Karthick, learned counsel appearing for the petitioner would submit that in terms of Rule 21 of the Rules, a minimum of 500 employees should be found to be ordinarily employed. Such ordinary employment would mean that more than 500 employees are found to be employed. Therefore, the report of the Chief Inspector of Factories dated 13.2.89 certifying that the petitioner do not have 500 ordinarily employed persons to attract the provisions of the Act merits acceptance and, hence, the learned counsel submitted that in the absence of application of the provisions of the Act, the order of the Commissioner invoking the power of the appellate authority and deciding the issue was without jurisdiction. The learned counsel for the petitioner would rely upon the judgment of the Supreme Court in R.Vidhyadhar Vs. National Textile Corporation, Bangalore & Others reported in 1993 Supp. (3) SCC 552 to contend that when substantial post is not one of a labour welfare officer and merely because the 2nd respondent was posted as labour welfare officer, though he was initially appointed as statistical quality controller, he cannot claim any protection attached to the post of labour welfare officer.
14. We have considered the above submissions advanced by the learned counsel on either side. The 2nd respondent was appointed on 12.10.81 as SQC (Trainee) on probation for a period of one year. There is no dispute about this employment. In fact, the said appointment was confirmed on 8.12.83 with effect from 1.12.83. This order of confirmation is also not in dispute. Much reliance is placed on the order of the petitioner dated 5.9.85. While it is the case of the petitioner that the said appointment was only at the request of the 2nd respondent as he could have a chance of further promotion and that the said appointment was not a fresh appointment, but the same was in addition to the appointment of the 2nd respondent as SQC made on 12.10.81, Mr. A.L.Somayaji, learned senior counsel appearing for the petitioner has submitted that from the very reading of the appointment order it is clear that the 2nd respondent was not exclusively appointed to the post of labour welfare officer, but was also asked to attend to the existing duties being performed by the 2nd respondent.
15. We are not impressed by the said submission. We have in fact extracted the order dated 5.9.88 and the said appointment was made not on mere request of the 2nd respondent. An advertisement was made in "The Hindu" on 21.6.85 calling for applications. Pursuant to the same, the 2nd respondent applied on 27.6.85 and was appointed on 5.9.85. It must also be seen that pursuant to the said appointment the petitioner wrote to the Joint Chief Inspector of Factories on 16.1.86 for approval of the said appointment. This approval is required as per the Rules. We have already extracted the order of the Joint Chief Inspector of Factories dated 23.1.86 according approval.
16. Though an argument was advanced by the learned senior counsel for the petitioner that the said order cannot by any stretch of imagination be considered as an order of approval, we are not inclined to accept the same as the very contents of the order will speak for itself. In the subject column, it is stated as follows :-
"Sub : Factories Act 48 and Tamil Nadu (Welfare Officer) Rules, 1953 - appointment of Thiru P.Subbarayan - Labour Welfare Officer - Approval regarding."
The Joint Chief Inspector of Factories in that letter has specifically stated that the appointment is in accordance with the Rules. Hence, the appointment of the 2nd respondent as labour welfare officer made by the petitioner is in accordance with the provisions of the Act and the Rules and in that view of the matter the appointment and the consequential order of termination shall be only on the basis of the provisions of the Act and the Rules.
17. A further argument was advanced that in view of the order of the Joint Chief Inspector of Factories dated 13.2.89 certifying that the mill basically cannot be brought under the purview of the Act and the Rules as it employed 500 or less employees, it is to be seen that the petitioner itself has by its letter dated 16.1.86 has asked for the approval on the premise that it has 500 and more employees ordinarily employed, which necessitated the petitioner to appoint a labour welfare officer by following the provisions of the Act in calling for application, etc. The pages 166, 167, 168, 171, 174, 177, 179, 181, 183 and 185 annexed to the typed set indicate the employment of more than 500 ordinarily employed persons during the respective years.
18. It is also to be noted that the 2nd respondent was made in-charge of SQC from the post of labour welfare officer on 30.4.88 and after enquiry into the alleged misconducts, he was terminated on 15.11.88. Only after the above, by a letter the petitioner had requested the Joint Chief Inspector of Factories to make an inspection to find out as to the number of employees in the factory for the period from 1984 to 1988. Only on the basis of this request the communication of the Joint Chief Inspector of Factories dated 13.2.89 certifying that the factory did not employ more than 500 ordinary employees for the period 1984-1988 was sent. This subsequent certificate, in our considered view, cannot be given weightage as before the said certificate the 2nd respondent was divested from the post of labour welfare officer and was made SQC In-charge on 30.4.88 and in fact he was terminated from service on 15.11.88.
19. In view of our above findings, the further question that arise for our consideration is :-
"Whether appointment of the 2nd respondent as against a statutorily created post under Section 49 of The Factories Act could be either annulled or disturbed without reference to the provisions of the Act or the Rules made thereunder ?"
20. The answer to the above question is the Division Bench judgment of this Court in P.Madhavan Vs. Binny Ltd. reported in 1992 (1) LLN 574. We do not want to elaborate the various provisions of the Act and the Rules as almost all the provisions have been extracted by the Division Bench before considering the issue. That was also a case where a labour welfare officer, who was transferred from one department to another department, came up before this Court by way of a writ of mandamus for implementing the order of appointment as a labour welfare officer. The Division Bench, after elaborately extracting the provisions of the Act and the Rules and considering the importance of the post and the duties attached to the same, has held thus :-
"6. Placing reliance mainly on the rules, learned counsel for the petitioner, would submit that there could not be any ambiguity that rights, privileges and duties of significance and public importance got accrued and settled by statutory rules and correspondingly the management has got an obligation to preserve them and not abrogate them, by transferring the incumbent in that post to any other post. Analytically, when we look into the rules, we are obliged to agree with the submissions of the learned counsel for the petitioner that rights, privileges and duties of significance of public nature, get conferred on a Welfare Officer. Sub-rule (2) of rule 6 speaks about the right of appeal available to the Welfare Officer in the case of discharge or dismissal of the Welfare Officer and it further says that the decision of the Commissioner of Labour thereon shall be final and binding upon the occupier of the factory. Sub-rule (3) contemplates that no penalty shall be imposed upon a Welfare Officer by the management unless he has been first informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. Coming to rule 7, it has assigned a very significant role of public nature for the Welfare Officer. Learned counsel for the respondent would submit that these rights, privileges and duties could be claimed, so long the person is an incumbent in the post and not otherwise. That is not the question that should engage our attention; but the question is as to whether a legal sanction could be found to do away with those rights, privileges and duties, by transferring the person from the post.
* * * * * * * *
8. The post is not one created in ordinary service parlance. The post is one required to be created by S.49 (1) of the Act. In that sense, it could be characterised as a statutory post. Section 49 (2) enjoins upon the State Government to prescribe the duties, qualifications and conditions of service for the incumbent in the post. The rules got formulated towards that end. As already seen, rule 4 prescribes the qualifications and rule 5 sets down the method of recruitment. There is no escape from these statutory prescriptions. The implications of rules 6 and 7 have already been noticed. Thus, the post is a substantive one created under and pursuant to statute. We have no ambiguity in our mind that the post is of a public nature and it carries with it the duties of significance of an office, which affects a section of the general public. The duties annexed to the post enjoins upon the incumbent to maintain harmonious relationship between the management and the workers, to bring to the notice of the management the grievances of the workers, individual as well as collective, with a view to secure expeditious redressal. The incumbent should act as a liaison officer between the management and the workers. He should encourage provision of very many amenities for the workers. He has got a role to play with reference to the provision of welfare facilities and to suggest measures to raise the standard of living of the workers. We have only broadly recapitulated the duties of a Welfare Officer, but they are exhaustively set down in rule 7. Viewed from the above angles, the office of a Welfare Officer can certainly be characterised as an office of a public and substantive nature. The respondent cannot without any legal sanction therefor dislodge the petitioner from the post. The rules by themselves do not envisage the disturbance of the incumbent from the post of a Welfare Officer so as to be transferred to any other post, may be of equal cadre. If we go by the express verbalism of the rules, disturbance of the petitioner from the post of a Welfare Officer by way of transfer, as happened in the present case, cannot be sustained. But, the endeavour on the part of the learned counsel for the respondent is to say that the conditions of service of a Welfare Officer being same as those of other members of the executive staff, the petitioner could be transferred from the post of Welfare Officer to any post of equal cadre.
9. It is true that rule 6 (1) speaks about the Welfare Officer having appropriate status corresponding to the status of a member of the factory executive staff and rule 6 (2) says that the conditions of service of a Welfare Officer shall be the same as those of other members of the staff of corresponding status in the factory. It is possible to argue that if the conditions of service have contemplated and set down
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the transfer of a Welfare Officer from that post to any other post of equal status or cadre, that has got to be implemented. However, we must record here that Sri N.G.R.Prasad, learned counsel for the petitioner, would submit that even if there is such a term or condition of service, that must stand ignored as abrogating the statutory rights and privileges annexed to the post of Welfare Officer. This contention may require examination only if a term or condition of service which has contemplated and settled the question of a transfer of a Welfare Officer from that post to any other post of equal cadre, has been expressed in the service parlance of the respondent. Hence, we are first obliged to find out as to whether any material throwing light on this aspect has been made available to the Court by the respondent." From this judgment it is very clear that the post of labour welfare officer cannot be divested even by way of transfer. In the present case, the 2nd respondent, though was appointed as a labour welfare officer, he was divested of the post and was posted to a non-statutory post of SQC In-charge. 21. A further argument was advanced by the learned senior counsel for the petitioner that the 2nd respondent having been appointed in the same cadre cannot have any grievance. Whether a labour welfare officer is transferred and posted or posted as in-charge in an equivalent post does not make any difference as a labour welfare officer, by virtue of the responsibilities attached to the post, cannot be asked to hold any other post. Hence, we find that the order of the appellant dated 30.4.88 is an order of divestment of the 2nd respondent from the post of labour welfare officer amounting to dismissal. When once we come to the conclusion that by the said order the 2nd respondent has been dismissed from service, we absolutely find no justification for the challenge to the impugned order of the Commissioner of Labour. 22. Accordingly, W.P. No.15777/89 is dismissed. In view of the dismissal of W.P. No.15777/89, the writ petitions questioning the order of the Joint Chief Inspector of Factories and the award of the Tribunal and the appeal questioning the order passed by the learned single Judge need not be gone into y us. Accordingly, W.P. Nos. 1365 and 2686 of 1994 and W.A. No.1486 of 1993 are disposed of in view of our order in W.P. No.15777/89. Consequently, connected miscellaneous petitions are closed. The parties shall bear their respective costs in these petitions and appeal.