Dwivedi, J.:— The appellant is, it has been stated before us by counsel for the appellant, a public company registered under the Companies Act. It has filed this appeal against the judgment of Sri Justice Oak, allowing the writ petition of G.C Kumar, the first respondent.
2. The facts of the case, with the exception of one of them, are undisputed. In July, 1962, G.C Kumar was employed as a Labour Welfare Officer in the Associated Stone Industries Kotah Ltd., Ramganj Mandi, Rajasthan. On July 9, 1962 the appellant employed him in its Industrial Relations Personnel Department on six months' probation. On December 10, 1962 he was appointed Labour Welfare Officer There were two three-monthly extensions of his probation, once in January and then in March, 1963. On the expiry of the second extension no order confirming him on the post was made.
3. One B.K Shukla, an Inspector of Factories, inspected the factory of the appellant. His inspection report, dated November 7, 1963, pointed out that G.C Kumar does not possess the requisite qualifications prescribed by r. 9 of the Factory Welfare Officer' Rules. This report set in motion in enquiry about his qualification. By letter, dated February 24, 1964, the Chief Inspector of Factories, U.P informed the appellant that G.C Kumar ‘does not fulfil the qualifications of r. 9(d) of the U.P Factories Welfare Officers’ Rules, 1955. Thereafter by letter, dated April 17, 1964, the appellant terminated the service of G.C Kumar. G.C Kumar made a representation to the Government which was rejected on November 30, 1964.
4. G.C Kumar then filed a writ petition in this Court. He prayed for the following relief in the petition:
(1) A writ in the nature of mandamus or any other writ, order or direction commanding the State Government to set aside the order of the appellant, dated April 17, 1964, and commanding the appellant to reinstate him to his post with back pay.
(2) A writ in the nature of certiorari or any other writ order or direction for quashing the order of the State Government, dated November 30, 1964.
(3) A writ, order, or direction to the appellant directing it to keep him in its employment and not to give effect to his order, dated April 17, 1964.
5. The petition was allowed by Sri Justice Oak. The appellant was directed not to give effect to the order of discharge, dated April 17, 1964. The order of the State Government, dated November 30, 1964 was quashed.
6. The State Government has not filed any appeal. Sri Sorabji, counsel for the appellant, has urged before as the following points:
(1) The Court cannot issue a writ in the nature of mandamus or any other writ, order or direction to the appellant which is a trading corporation and not a public body.
(2) No relief can be granted to G.C Kumar as he was not qualified to be a Labour Welfare Officer. He has no legal right to the post.
(3) The order, dated April 17, does not cast a stigma on G.C Kumar and does not punish him. It was made in exercise of the contractual right to terminate service.
(4) In any case this Court cannot direct the re-instatement of G.C Kumar to the post of Labour Welfare Officer.
7. The last argument may soon be disposed of Sri Justice Oak has not directed the appellant to reinstae G.C Kumar. The learned Judge has directed the appellant not to give effect to the order of discharge. Such an order can be made under Art. 226 of the Constitution. The order does not compel the appellant to take work from G.C Kumar. Of course it will entail the payment of his salarv to him.
8. We shall now take up the third point. The order terminating the service of G.C Kumar was made by the appellant on April 17, 1964. The pertinent portion of the order is as follows:
“We regard to advise you that since your services were not found satisfactory, we were unable to confirm you. You had also been given an opportunity to act as Labour Welfare Officer but due to the State Government not accepting your qualifications it was not possible to continue you in that capacity.
As your services have not been satisfactory please be advised that your services will no longer be required by us. Accordingly we hereby terminate your services.
9. It is admitted by counsel for the appellant that G.C Kumar was the Labour Welfare Officer on probation when his service was terminated. R. 11 of the Welfare Officers' Rules provides for the discharge from service of a Labour Welfare Officer if his work has not been satisfactory. R. 15 provides for his punishment. The first proviso to r. 11 contains an important safeguard for the Labour Welfare Officer. It provides that his service shall not be terminated without the written concurrence of the Labour Commissioner, who shall record his reasons therefor. R. 15 sets out several kinds of punishments including dismissal or termination of service in any other manner. R. 15 contains two provisos. The first proviso ensures a hearing to the Labour Welfare Officer before he may be punished. The second proviso enjoins on the employer not to impose any punishment on him except ensure without the previous concurrence of the Labour Commissioner.
10. The concurrence of the Labour Commissioner with the order of termination of service of the Labour Welfare Officer is a common feature of rr. 11 and 15. It is admitted by counsel for the appellant that the concurrence of the Labour Commissioner with the order treminating the service of G.C Kumar has not been obtained. So the order is in contravention of rr. 11 and 15. It cannot be gainsaid that r. 11 would in any case apply to the order as G.C Kumar was on probation at the time of his discharge from service. Accordingly we are of opinion that the order is invalid. In the result it is not necessary to decide that the order does not impose a punishment as it does not cast a stigma on G.C Kumar.
11. We shall now take up the first point. Counsel for the appellant has maintained that a mandamus has never been issued to a trading corporation. This broad argument is, we apprehend, not borne out by the history of mandamus in England. According to Blackstone (Blackstone's Commentaries on the Laws of England by George Koase (IV Edn.)) mandamus is directed to any person or corporation, requiring him or it to do some particular thing, which appertains to his or its office and duty. A mandamus lies to compel the admission or restoration of the party applying to any office or franchise ‘of a public nature’.
12. Tapping mentions cases where a mandamus has been issued by the English courts to companies to enforce duties imposed by charter or statute (Taping; High Preprogative writ of Mandamus, pp. 82 to 84). ‘The writ has been refused to command restoration, to the place of a clerk of a company, as of the Company of Burchers of London, although it be an office instituted by charter and a freehold, for it is not a public office but a private one, for which a mandamus does not lie; from a review, however, of the older cases, it would seem that the mandamus should have been granted, for it has been said that the writ has been granted for clerks of private companies since Lord Holt's time. So in White's case…… it is stated that the mandamus was granted, the court there alleging as the ground of its judgment, that it was the same case with that of a town-clerk.”
13. According to Halsbury's Laws of England (1) mandamus issues to any person or corporation to do what appertains to his or their office and is in the nature of a public duty. “In particular mandamus will lie to restore, admit or elect to an office of a public nature; for the deliver up, production and inspection of public documents, to endorse statutory rights and duties: ….”(2). An order of mandamus is granted for doing that which a statute obliges to be done and “for this rule to apply it is not necessary that the party or corporation on whom the statutory duty is imposed should be a public official or an official body” (3).
14. In The King v. The Severn and Wye Railway Co. (4) mandamus was issued to the Railway Company to reinstate and lay down again a railway. In The Queen v. The Government Stock Investment Co. Ltd. (5) the Investment Company was registered under the Companies Act 1882. A person claimed to have been elected as a director by show of hands. Mandamus was issued to institute him into office.
15. In The King v. Lear (6), Holroyd, J. said:
“In Comm. Dig. Mandamus (A), it is stated that the writ of mandamus is granted to prevent failure of justice, and for the execution of the common law, or of a statute, or of the King's Charter: but not as a private remedy to the party.”
16. In Ex Parte Robins (7), Patteson, J. said:
“A mandamus, if granted at all, must be to do something which the company are required to do by the act of Parliament, not something which they are required to do by the general law of the land.”
17. In the U.S.A, a “private domestic corporation is subject to judicial control by a writ of mandamus-------. This is so because the corporation is the recepient of a franchise from the State and is subject to its visitarial power (8)”. It is also said that mandamus “lies to seat a person entitled to a corporate office where his title thereto has been adjudicated or is clear or undisputed” (9).
18. According to Ferris (10) private domestic corporations are subject to the writ of mandamus, and they may be compelled to perform ‘an act which the law specifically enjoins as a duty. Mandamus may be issued to them not only for the performance of public duties, but also for the enforcement of private rights’. Ferris goes on to say:
“Mandamus is the proper remedy to prevent further illegal exclusion from office in a private corporation when the right thereto is clear; …….”(11).
19. Section 45 of the Specific Relief Act empowered the Presidency High Courts to make an order, which was of the nature of mandamus, to a corporation requiring any specific act to be done or forbone provided that such doing or forbearing was, under any law for the time being in force, clearly incumbent on such corporation in its corporate character. Art. 226 of the Constitution is very wide and empowers High Court to issue a writ to any ‘person’, which word includes a company registered under the Companies Act. A High Court is empowered to issue not only the well-known prerogative writs but also to issue any order, writ or direction according to the necessities of a case.
20. In In re Albert Mills Co. Ltd. (12), the Bombay High Court issued an order to enforce the right of an elected director to act as a director.
21. In the Bank of Bombay v. Suleman Somji (13) the plaintiff instituted a suit for a declaration that he was entitled to inspect the register of shareholders and copy and take extracts from the said register and for an order that the Bank should give him such inspection and allow such copies and extracts. The suit was decreed by the Bombay High Court. In appeal the Privy Council set aside the decree and dismissed the suit for the reason that the plaintiff was not asking for inspection and copies in self-interest. The Privy Council said that the suit was of the nature of an application for a writ of mandamus and that the principles regulating the issue of mandamus should govern the making of a decree in the suit. It was further said that the right of inspection is not founded on any statute but on the common law which gives right of inspection to every member of a corporation if it is necessary in his self-interest.
22. This case suggests that mandamus may issue to a trading corporation in certain cases.
23. In L.S Lalvani v. N.M Shah (14) the Supreme Court said:
“The Chief function of the writ (mandamus) is to compel the performance of public duties prescribed by statute”.
24. What is an office of a public nature? In Derby v. The Queen (15) Tindal, C.J said that quo warranto may issue ‘for usurping any office, whether created by charter alone, or by crown, with the consent of Parliament, provided the office be of a public nature, and a substantive office’. In The Queen v. The Guardians of the Poor of St Martins (16) Lord Campbell said that quo warranto will issue (ii it be an office in which the public have an interest’. According to Patteson, J. the duties of an office are of a public nature if ‘the exercise of them affects a great body of persons’ (17). In In the matter of G.A Nateson (18) it was held that a public office means any office created by a statute for discharging functions which affect the public generally or any particular section thereof.
25. We believe that this discussion of the case-law would be in complete if we do not mention two more decisions which would show that the writ of mandamus is not past judicial adaptation to the needs of our country. In Rochester Corporation v. Regina (19), Martin, B. said:
“Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment we think it our duty to be vigilant to apply it in every case to which by any reasonable construction it can be made applicable.”
26. In T.C Besappa v. T. Nagappa (20), the Supreme Court observed: “The language used in Arts. 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to the issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari, as may be considered necessary for enforcement of fundamental rights and in the case of High Courts, for any other purpose as well. In view of the express provisions in our Constitution we need not now look back to the early history of the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English Law.”
27. From this review of the authorities and laws there emerge the following principles:
(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.
28. We shall examine the present case in the light of these principles. For this purpose it is necessary to notice certain provisions of the Factories Act and the U.P Factories Welfare Officers Rules, 1955.
29. The Factories Act (hereinafter called the Act) is a huminitarian measure. It has been enacted for protecting the health safety and welfare of the labour in factories. Section 2(n) defines an ‘occupier as the person who has ultimate control over the affairs of the factory Chap V of the Act is headed as ‘Welfare’. It consists of nine sections. Sections 42 to 48 provide for certain facilities to the labour. Section 49 is material to the case. It reads:
“(1) In every factory wherein five hundred or more workers are ordina???ily employed the occupier shall employ in the factory such number of welfare officers as may be prescribed.
(2) The State Government may prescribe the duties, qualifications and conditions of service of officers employed under subsection (1).”
30. The U.P Factories Welfare Officers' Rules, 1955, have been made by the State Government under the Act. They have accordingly the force of a statute and are to be deemed a part of the Act. R. 8 defines the status of the Labour Welfare Officer. It provides that ‘he shall have the status of an officer of the Factory’. R. 10 provides that a Labour Welfare Officer shall be appointed ‘on a permanent basis’, but he shall initially be placed on one year's probation. His service may be dispensed with by the occupier during or at the end of the period of probation if he ‘has not made sufficient use of his opportunities, or if he has otherwise failed to give satisfaction.’ Alternatively, the probation may be extended by one year. In either case there must be the written concurrence of the Labour Commissioner, who shall record his reasons therefor. This is the effect of r. 11. R. 12 provides that he shall be confirmed at the end of the period of the probation. R. 15 provides for various punishments including the punishment of dismissal or termination of service in any other manner. No punishment can be imposed Upon him unless ‘he has first been informed of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. Again, no punishment other than censure shall be awarded without the previous concurrence of the Labour Commissioner. The Labour Commissioner shall hear him before giving his concurrence. He may appeal to the State Government from the order of dismissal or termination of service. R. 21 fixes the age of his superannuation at 55 years. R. 17 enumerates the duties of the Labour Welfare Officer. These duties are: (1) to promote harmonious relations, and act as a Liaison Officer between the workers and the management; (2) to get the grievances and complaints of the workers with regard to their working conditions redressed expeditiously; (3) to bring the breaches of labour laws and orders and statutory obligations regarding health, safety and welfare of the workers to the notice of the manager or occupier, and take suitable steps for the provision of amenities such as canteens, shelters for rest creeches, adequate latrine facilities, drinking water, etc. and (4) to make representations to the authorities concerned in regard to conditions of roads bridges etc used by labour in proceeding to, and from, the work’ In short the duties of the Labour Welfare Officer are to en-sure the health, safety and welfare of the labour employed in the factory.
31. 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 Section 49 of the Act and the Factories Welfare Officers' Rules.
32. Counsel for the appellant has relied on certain cases in support of his argument that a mandamus has never issued to a trading corporation. These cases are P.K Pillai v. Burmah Shell Oil Storage and Distribution Co. (21); Firm A.L.A.R Arunachalam v. Kaleeswarar Mills Ltd. (22); Sohan Lal v. Union of India (23); Ram Kishan v. Central Bank of India (24); In re U.S Hariharan (25); M. Durgaiah v. Agent, Tindur Collieries (26); S.P Saxena v. Manager, A.R Higher Secondary School (27); L.S Lalwani v. N.M Shah (28); and R. Lakshmi v. Neyveli Lignite Corporation (29). But all these cases are patently distinguishable for in none of them there was cast on the private individual or corporation a duty by a statute, nor was the office a public office.
33. It may be noted that the order of termination of service comes here buttressed by the opinion of the Chief Inspector of Factories and the State Government that G.C Kumar does not hold the requisite academic qualification, and by the direction of the former that G.C Kumar should soon be replaced by a duly qualified person. The appellant removed G.C Kumar on account of the direction of the Chief Inspector of Factories. This gives to the impugned order of termination of service a quasi-governmental colour. In these circumstances it is a fit case where a writ, order or direction should issue under Art. 226.
34. We shall now deal with the second argument of the appellant. R. 9 of the Factories Welfare Officers' Rules prescribes the age and qualifications of the Labour Welfare Officer. The case of the appellant is that G.C Kumar does not possess the qualification prescribed by r. 9(d). The case of G.C Kumar is that he possesses the said qualification.
35. R. 9(d) lays down that no person may be appointed as a Labour Welfare Officer unless ‘he possesses a degree in Economics or Sociology of a University established by law’.
36. It is admitted by G.C Kumar that he holds the degree of B.Sc (Agriculture) with Agricultural Economics as one of his subjects. It is said by him that there is no difference between Agricultural Economics which was taught to him in B.Sc and Economics which is taught in B.A The supplementary affidavit which he has filed before us includes a copy of the syllabus of Agricultural Economics in B.Sc (Agriculture). It is common ground between counsel for the parties that a person possessing B.A degree with Economics fulfils the standard prescribed by r. 9(1). The appellant has filed a supplementary affidavit after the close of arguments This affidavit includes a copy of the Syllabus of Economics in B.A of the Allahabad University. The two syllabus are dissimilar. However, we are difficult to determine the question raised before us, for it requires an expert knowledge of the two subjects. We confess that we are not an expert in the two subjects. In the result, we are unable to hold that G.C Kumar has no legitimate right to the office of the Labour Welfare Officer which he can seek to protect in the writ proceeding.
37. We shall assume for the sake of argument that G.C Kumar is not duly qualified to hold the office of the Labour Welfare Officer. Even so, his appointment to the said office cannot be said to be void ab initio. The appointment of an unqualified person is irregular, and not illegal. This is evident from a perusal of rr. 9 and 13. R. 9 consists of the main part and two provisos. The main part opens with the phrase ‘no person may be appointed’, while the second proviso opens with the phrase ‘no person shall be appointed’. The use of the auxiliary verb ‘may’ in the main part and the auxiliary verb ‘shall’ in the second proviso is significant. It seems to us that the choice of the two different verbs is deliberate. In the main part ‘may’ is used to indicate the (directory nature of the provision; in the second proviso ‘shall’ is used to suggest the imperative character of the second proviso. This inference is reinforced by r. 13 which enables the State Government to exempt a person from all or any of the qualifications prescribed by r. 9. R. 9(d) the rigour of which may be relaxed in a certain contingency, cannot operate as imperative until the request for exemption is denied by the Government. (State of U.P v. Manbodhan Lal (30) and K. Narasimbiah v. B.C Singri Gowda (31)). After the rejection of the request for exemption, only the further continuance in office of the unqualified incumbent will not be legal.
38. In the present case G.C Kumar applied to the State Government for exemption from the qualification prescribed by r. 9(d) even though his case was that he was fully qualified. It does not appear from the record before us that any order has been made on this application by the State Government. The application was made after the passing of the order of termination of service. As the application appears to be still pending, and as r. 9 is not imperative in nature in the sense already explained, it cannot be successfully urged that the restoration of G.C Kumar as Labour Welfare Officer would be in the teeth of the provisions of the Act and the rules made there-under and would expose the appellant to the danger of prosecution and conviction under Section 92 of the Act for retaining G.C Kumar in service in contravention of the provisions of the Act and the Rules. In view of the foregoing discussion we are of opinion that the appeal fails and is hereby dismissed with costs payable to G.C Kumar only.
39. Appeal dismissed.