State Of West Bengal And Others v. Tapesh Chakraborti And Others

The Judgment of the Court was delivered by

B.P Banerjee and B.M Mitra, JJ.:— This is an appeal against the judgment and order, dated July 20, 1993 passed by the learned trial Judge allowing the writ application filed by the writ petitioners/opposite parties. The writ petition was filed by the writ petitioners who were appointed as Inspectors of Factories in the Chemical and Medical Wings of the Factories' Directorate, Government of West Bengal.

2. The question that is involved in this appeal is whether the writ petitioners/opposite parties should be treated differently from that of other j categories of employees who were appointed as Inspectors of Factories or in other words whether the Inspectors of Factories who were posted in the Chemical and Medical Wings hold different posts and fall beyond the cadre of Inspector of Factories. Initially appointment in the post of Inspector of Factories was made by the relevant recruitment rules. Subsequently, for the purpose of appointing Inspectors in the Chemical and Medical Wings separate set of recruitment rules were made. Similarly, for the purpose of recruitment in the post of Deputy Inspector of Factories (Chemical) separate recruitment rules were made. The writ petitioners/opposite parties made a representation to the Government that the Inspectors of Factories form one class and come within the one cadre and there is no basis for a classification between the Inspectors of Factories who were appointed under Section 8(1) of the Factories Act and the writ petitioners/opposite parties who were also appointed as Inspectors of Factories (Chemical) and (Medical) wings under Section 8(1) of the said Act. As they were differently treated and as the Inspectors' of Factories who were in the Medical and Chemical Wings were not considered for promotion in the hierarchy of the department they were aggrieved and made representation to wipe out the said anomaly and thus on the basis of such representation it appears that an order was passed on April 7, 1989 by the Joint Secretary of the Labour Department for the purpose of change of nomenclature of Inspectors of Factories (Chemical) and Inspectors of Factories (Medical) as also the Deputy Chief Inspectors of Factories (Chemical) the said order was passed as hereunder:—

“1. I am directed to say that the question of change of nomenclature of the Inspector of Factories (Chemical), Medical Inspector of Factories and Dy. Chief Inspector of Factories (Chemical) under the Directorate of Factories, Government of West Bengal has been under consideration for some time past.

2. The different cell of the Factories Directorate have been manned by the Inspectors mentioned in para 1 above. It has since been seen that the West Bengal Factories Rules (Rule 13) does not provide or indicate different types of Inspectors of Factories. It only stipulates the powers by using the word ‘Inspector’. All these posts should have therefore, the nomenclature specified in the rules, i.e, Inspectors of Factories' and Dy. Chief Inspector of Factories.

3. Now in exercise of the powers conferred by the proviso to Section 8 of the Factories Act, 1948 and Rule 15 of the West Bengal Factories Rules, 1953, I am directed by the order of the Governor, to say that the Governor has been pleased to change the nomenclature of the Inspector of Factories (Chemical) and (Medical) Inspector of Factories as ‘Inspector’ of Factories' and that of the Deputy Chief Inspector of Factories (Chemical) as Deputy Chief Inspector of Factories.”

3. It also appears that after a year the said order was sought to be made ineffective by the office order No. 1120-G.E., dated April 25, 1990 issued by the Assistant Secretary, Labour Department, addressed to the Chief Inspector of Factories-in-Charge, wherein it was stated that as advised by Finance (Law Cell) Department, the Chief Inspector of Factories was requested not to implement the department order No. 932-G.E., dated April 7, 1980 regarding change of nomenclature of Medical Inspector of Factories, Inspector of Factories (Chemical) and Deputy Chief Inspector of Factories (Chemical) until further orders. The said letter of the Assistant Secretary, dated April 25, 1990, created a trouble in this matter and ultimately a writ application was filed whereupon the learned trial Judge on consideration of the matter and in view of the provisions of Section 8 of the Factories Act was pleased to hold that there is no basis for treating the Inspector of Factories (Chemical) and Medical Inspector of Factories differently from that of Inspector of Factories in view of the fact that Section 8(1) of the Factories Act empowers the State Government to appoint such persons as possessing the prescribed qualification to be Inspectors for the purposes of the said Act and assign to them such local limits as it may think fit. Accordingly, the learned trial Judge held that there should be a common cadre in respect of all Inspectors of Factories irrespective of the fact that one is under medical wing or under chemical wing. It may be mentioned that on the basis of the recruitment rules the pay scale of the Inspector of Factories appointed in Chemical and Medical Wings were getting lesser pay, but ultimately a writ application was filed in this Court whereupon applying the principle of equal pay for equal work the said discrimination in the matter has been eliminated and admittedly all the Inspectors of Factories irrespective of postings are getting the same pay scale. Being aggrieved at and dissatisfied with the order passed by the learned trial Judge this appeal has been preferred by the State of West Bengal.

4. Mr. Sunit Krishan Dutta, learned Advocate for the appellants submitted that as the writ petitioner/opposite parties were recruited under different Recruitment Rules framed under Article 309 of the Constitution of India they could not to be treated as Inspector of factories within the meaning of Section 8(1) of the Factories Act because they were not appointed as ‘Inspector of Factories’ but were appointed as ‘Inspector of Factories (Chemical)’ and ‘Inspector of Factories (Medical)’ and accordingly they could not be treated at par. It was further submitted by. Mr. Dutta that the Government Order, dated April 7, 1989 regarding the change of nomenclature of Inspector of Factories (Chemical), Inspector of Factories (Medical) and Deputy Chief Inspector of Factories (Chemical), was not valid and proper and accordingly neither the writ petitioners/opposite parties nor this Court can rely upon such an order which according to Mr. Dutta was not issued in accordance with the procedure laid down in this behalf.

5. Admittedly, the order dated April 7, 1989 had not been cancelled, recalled and/or rescinded by ths authority concerned, but the same was sought to be made ineffective on the basis of a letter written by the Assistant Secretary, Labour Department addressed to the Chief Inspector of Factories-in-Charge stating that as advised by Finance (Law Cell) Department the same should not be implemented until further orders.

6. Mr. Bikash Bhattacharjee, learned Advocate appearing on behalf of added respondents who were appointed as Inspectors of Factories and not Inspector of Factories (Chemical) or (Medical), submitted that the writ petitioners cannot be treated at par with that of Inspector of Factories because they were not only treated at par also but also not recruited under same rules and accordingly they are not entitled to have claimed for treating them at par with those of Mr. Bhattacharjee's clients and they were also not belonging to the cadre.

7. Mr. Partha Sarathi Sen Gupta, learned Advocate appearing for the writ petitioner/respondents submitted that the State Government cannot appoint any person other than the Inspector of Factories and in support of his contention reliance was made to Section 8(1) of the Factories Act which provides that “the State Government may, by notification in the Official Gazette, appoint such persons as possess the prescribed qualification to be Inspectors for the purposes of his Act and may assign to them such local limits as it may think fit”. Mr. Sengupta drew our attention regarding the notification, dated June 5, 1987 issued by the order of the Governor through the Deputy Secretary, Labour Department, Government of West Bengal under which the appointment was made. The said order is as follows:—

“In exercise of the power conferred by Sub-section (1) of Section 8 of the Factories Act, 1948, (LXIII of 1948) the Governor is pleased hereby to appoint Sri Ram Chandra Dutta son of Sri Balaram Dutta, to be an Inspector for the purpose of the said Act within the State of West Bengal with effect from 21.2.1987 until further orders.”

8. Mr. Sengupta further submitted that as the writ petitioner/opposite parties were making representations and on the basis of such representations the grievances of the writ petitioners were set at rest by the order of the Governor they were happy and after the said order dated April 7, 1989 was sought to be made ineffective the writ petition was moved. In this connection reliance was placed in the case of State of Assam v. Raghava Rajagopalachari . 1972 SLR 44. wherein it was held by the Supreme Court that the respondent to the writ petition cannot be allowed to attack his own order as the respondent. Accordingly, it was submitted that as the respondent-State Government (the appellant herein) cannot take the stand that the said order, dated April 7, 1989 was invalid and/or illegal unless the said order has been subsequently revoked and/or cancelled by an appropriate authority.

9. Having heard the learned Counsels for the parties we are of the view that under Section 8(i) of the Factories Act the State Government can only appoint person as Inspector of Factories for the purpose of discharging the powers and functions under the said Act. The State Government may frame rules for the purpose of recruitment of Inspectors of Factories and for that purpose they may/lay down any qualification and pay scale, but that does not mean that the State Government can appoint person other than Inspectors of Factories. We are of the view that the State Government has not been conferred with any power under the Act to appoint a person as Inspector of Factories (Chemical) or (Medical) and as a matter of fact the State Government also realised this legal position correctly and accordingly in the letters of appointment appointing the writ petitioners they were described as simply Inspector of Factories and not ‘Inspector of Factories (Chemical)’ or ‘Medical Inspector of, Factories’. These nomenclature might have been necessary for the purpose of specifying the wings, or duties but this does not per se amount to creation of different posts and/or this should not be treated as post different from Inspector of Factories. The post of Inspector of Factories is a statutory post created under Section 8(i) of the Act and that Act in question has been passed by the Parliament. The State Government can only appoint any person in such post on the basis of qualifications prescribed by notification published in the Official Gazette. In other words, the State Government may lay down any qualification for the purpose of appointing a person as Inspector of Factories, but the State Government on the strength of the power cannot appoint any person for the purpose of filling up some other posts for the post of Inspector of Factories. From the letters of appointment it was also made clear that the State Government had appointed them as Inspector of Factories.

10. It appears that the learned trial Judge has not decided the effect of the order, dated April 7, 1989 on the ground that a dispute has been raised by the appellants before the learned Trial Judge that the said order was not a proper order. But, we are of the view that until and unless the said order of the Government is revoked and/or cancelled by the State Government or set aside by any appropriate proceeding the same is valid and binding.

11. It is firmly established principle that even if an order is ultra vires or void, until and unless the same is set aside in proper constituted proceeding, the same shall remain valid and operative. The brand of invalidity does not carry in its forehead. In this connection reference may be made in the case of State of Punjab v. Gurdev Singh wherein the Supreme Court has taken this view.

12. Accordingly, we cannot treat the order of the Government invalid or void on the basis of the arguments made before us and that too by the respondents in view of the principle laid down by the Supreme Court in the case of State of Assam v. Raghava Rajagopalchari (supra) wherein the Supreme Court clearly laid down that the authority cannot attack his own order as a respondent.

13. In the instant case, the appellants herein have attacked their own order as respondents in the writ petition. Accordingly, in view of the above decision of the Supreme Court we are unable to allow the respondents in the writ petition (appellants herein) to attack their own order. The learned Trial Judge in course of hi§ judgment held that in the instant case the recruitment rules were inconsistent with the provisions of the Act and Rules and as such the same was void because of provisions of Article 254(1) of the Constitution of India.

14. We are unable to share this view in view of the fact that Article 254(1) of the Constitution of India applies only in case of repugnancy and/or inconsistent between the State Act and the Central Act. Rules and Act do not stand at par. A Rule may be repugnant to the Act. But, if the rule is inconsistent with the Act, the same does not come within the purview of Article 254(1) of the Constitution of India. This is a misreading of Article 254 of the Constitution of India. Accordingly, save and except the above view we are entirely agreeing with the view of the learned Trial Judge.

15. Accordingly in terms of the order passed by the learned Trial Judge there should be a common gradation list and in the said gradation list seniority shall be fixed on the basis of the date of joining in the post and on that basis promotion and other service benefits should be conferred upon them strictly in accordance with law. Accordingly, we do not find any reason to interfere with the order passed by the learned Trial Judge to which we have agreed except one point as stated above, but that does not alter the position.

16. Accordingly, the appeal is dismissed.

17. There will be, however, no order as to costs.

18. The learned Advocate for the State appellants has prayed for stay of operation of the above order and the same was refused in view of the fact that during the pendency of the above appeal no stay order was granted in respect of the order passed by the learned Trial Judge.

19. As prayed for by Mr. Dutta three months' time is given for preparation of gradation list in terms of the order passed by the learned Trial Judge.

20. Re: F.M.A.T No. 3280 of 1993

21. The order passed in F.M.A.T No. 2810 of 1993 shall also govern the above referred case.

22. Let a xeroxed copy of the above order be given to the parties on the usual undertaking.

23. Sd/- B.P Banerjee, J. I Agree.

24. Sd/- B.M Mitra, J.