P MADHAVAN Vs. BINNY LIMITED

JUDGEMENT

(1.) THE Petitioner in W.P.No.14193 of 1991 is the appellant is this writ appeal. THE respondent in the writ petition is the respondent in this writ appeal. It will be convenient for us if we refer to the parties as per their nomenclature in the writ petition in the course of this judgment of ours.

(2.) BEFORE we come to the points urged in this writ appeal on behalf of the petitioner, it is better that we delineate certain factual features which are not in dispute. The petitioner entered the service of the respondent as a clerk on 7.11.1969. In 1985, an occasion arose for the appointment of Labour Welfare Officers in the service of the respondent. Suffice it to point out at this juncture that the statutory formalities with reference to the filling up of the posts were gone through and the petitioner was one of the appointees as a Labour Welfare Officer. Since much has been said both ways on the terms and conditions of appointment, we deem it necessary to extract the letter of appointment, dated 29.4.1985, as follows: "Telex: 41.302 BINNY - IN 41 -7263-BCML - IN Telegrams: Binny Madras Bucarnico Madras. Personnel Department; Registered Office: 65, Armenian Street, P.O.Box No.66, Binny Limited, Madras-1. Telephone: 29361. Mr.P.Madhavan, B & C Mills. Your ref. Our ref. Pers/F/PM Date 29th April, 1985 Dear Sir, ; As we have received a satisfactory report on your work, we are pleased to promote you as a Labour Welfare Officer in our management staff group F on Probation for one year, which may be curtailed or extended, with effect from 1st May, 1985 on a basic salary of Rs.455 per mensem. Your basic salary for subsequent years will be decided having regard to your performance each year and other relevant factors. You will be paid a dearness allowance of Rs.560 p.m. in addition to your basic salary, calculated, on the basis of a graduated scale applicable to your group. The minimum and the maximum basic salary applicable to Group F is shown below: Minimum Rs.250 Maximum Rs.550 In addition to your basic salary and dearness allowance you will be entitled to the following benefits: 1. House Rent Allowance: You will be eligible for a House Rent Allowance of Rs.175 p.m. i.e. at the rate of 20% of Basic + D.A. subject to a maximum of Rs.175 p.m. 2. Leave: You will be entitled to 28 days privilege leave per annum, (propate for 1985) on confirmation and upto 28 days sick leave per annum on full pay.

(3.) WITH regard to the nature of the post, certain pronouncements were cited before us by the learned counsel for the petitioner and in our view, it would be worthwhile to refer to them. In Pratap Chandra Sen v. Commissioner of Labour, A.I.R. 1957S.C. 794, the Supreme Court had occasion to advert to the Bihar Factories Welfare Officers Rules, 1952, the said rules also being those formulated under Sec.49(2) of the Act and the significance of the safeguards for the holder of the post of a Welfare Officer was summed up in the following terms: "The permanence of tenure and the safeguards against arbitrary punishment provided by the above rules are in order to safeguard him against victimisation by the employer having regard to the nature of his duties in the discharge of which there are chances of his incurring the employer's displeasure." In Synthetics and Chemicals Ltd. v. G.C.Kumar, (1972)25 F.L.R. 146, a Bench of the High Court of Allahabad dealt with a case where a person appointed to the post of a Welfare Officer was sent out of service on the ground of not fulfilling the qualifications under the U.P.Factories Welfare Officers" Rules, 1955. The question arose as to whether a writ in the nature of mandamus could issue to the State Government to set aside the order of the management terminating the services of a Welfare Officer and to command the management to reinstate him to the post. The learned Judges of the Bench of the High Court of Allahabad reviewed the English and Indian authorities and summed up the principles with regard to issuance of a writ of mandamus by the High Court, in the following terms: "(1) Mandamus may issue to a trading corporation to compel it to do its duty which is of a public nature. (2) A duty is of a public nature if it is imposed by charter, common law or statute. (3) Mandamus may issue to restore a person to a corporate office if the office is of a public nature. (4) The office is of a public nature if it is created by a statute and the duties of the office affect the general public or a section thereof. (5) Art.226 empowers the High Court to issue a writ in the nature of mandamus. The power may be exercised, keeping in regard the broad and fundamental principles which guide the issue of mandamus." The further question as to whether the office of a Welfare Officer is a public one was also discussed in the light of the U.P.Factories Welfare Officers" Rules, 1955 and the answer was given in the following terms: "These provisions show that the post of the Labour Welfare Officer is an office created by the Act. The office is of a permanent character. It is a substantive office. It is not an office held at mere will. The officer can be discharged only for some cause and with the written concurrence of the Labour Commissioner and after hearing. His duties are of a public nature because they affect the interest of a large number of workers employed in the factory. In the discharge of his duties he has to deal with persons not concerned with the factory. Accordingly, the office of the Labour Welfare Officer is a public office, and a writ of the nature of mandamus can issue to the appellant to restore G:C.Kumar to his office. It necessarily follows that the appellant owes a duty of a public nature to restore him to his office. The duty arises from Sec.49 of the Act and the Factories Welfare Officers" Rules." In Prem Narain v. Gawnpore Chemical Works, 1974 Lab.I.C. 479, a single Judge of the High Court of Allahabad had to deal with a case of the termination of the service of a Welfare Officer appointed under the Act and the U.P. Factories Welfare Officers, Rules, 1955, and the significance of the post of Welfare Officer was recapitulated by the learned single Judge of the High Court of Allahabad in the following terms: "The above catalogue of the duties of a Welfare Officer leaves no room for doubt that not only he holds an office but that it is a public office and his functions are replete with all the elements of a public employment. In fact, his duties embody a high concept of social justice, He has to act as Liaison Officer between the workers and the management. He has to endeavour to secure real welfare and amenities to the workers in the modern industrial set up and in so discharging his functions has certainly in a measure to act as a curb on the management which has to be kept within bounds. In these circumstances, it cannot be contended that with force that a Labour Welfare Officer functions on the will of the employer. On the contrary his office is created by the Act. It is of a permanent nature and it is a public office. If, therefore, a Labour Welfare Officer has a right to continue in his post until he attains the age of superannuation and the management or the private company chooses to terminate his service prior to that contingency or without complying with the statutory procedure, the officer is entitled to ask for a writ of mandamus. He has a legal right to the office and the management is under a statutory obligation to retain him in office." It could be said that the amplitude of the concerned rules dealt with in the above pronouncement are larger than that of the Rules here. But, we do not find much difference in the implications of them. Hence, what all have been expressed in the above pronouncements can certainly form a guidance to decide the present issue.