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Synthetics & Chemicals Ltd., Fatehganj, West, Bareilly v. G.C Kumar And Others
Factual and Procedural Background
The appellant is a public company which employed G.C. Kumar in its Industrial Relations Personnel Department on July 9, 1962 on six months' probation and appointed him Labour Welfare Officer on December 10, 1962. His probation was extended twice (three-monthly extensions in January and March 1963) but on expiry of the second extension no confirmation order was made. An Inspector of Factories (B.K. Shukla) reported on November 7, 1963 that G.C. Kumar did not possess the requisite qualifications under rule 9 of the U.P. Factories Welfare Officers' Rules, 1955. Following inquiries and a communication from the Chief Inspector of Factories (dated February 24, 1964) that Kumar did not fulfil r.9(d), the appellant terminated Kumar's services by letter dated April 17, 1964. Kumar's representation to the State Government was rejected on November 30, 1964.
G.C. Kumar filed a writ petition seeking (1) mandamus to set aside the appellant's April 17, 1964 discharge order and to reinstate him with back pay; (2) certiorari to quash the State Government's November 30, 1964 order rejecting his representation; and (3) a direction to the appellant not to give effect to the discharge order. Sri Justice Oak allowed the writ petition, directing the appellant not to give effect to the discharge order and quashing the State Government order. The appellant appealed against Justice Oak's judgment.
Legal Issues Presented
- Whether a writ in the nature of mandamus (or any other writ, order or direction under Article 226) can be issued against the appellant, a trading corporation, i.e., whether mandamus may be issued to a trading corporation which is not a public body.
- Whether G.C. Kumar could be granted relief when he allegedly lacked the statutory qualifications required by rule 9(d) of the U.P. Factories Welfare Officers' Rules (i.e., whether he had a legal right to the Labour Welfare Officer post).
- Whether the appellant's order dated April 17, 1964 was a punitive order casting a stigma or whether it was an exercise of contractual termination rights (i.e., whether the order amounted to punishment or merely termination under contractual rights).
- Whether the High Court could direct reinstatement of G.C. Kumar to the post of Labour Welfare Officer (and the scope of the remedy under Art. 226, including whether the Court could order restoration or only restrain the appellant from acting on its discharge order).
Arguments of the Parties
Appellant's Arguments
- The Court cannot issue mandamus/or other writs to the appellant because it is a trading corporation and not a public body.
- No relief should be granted because G.C. Kumar was not qualified under r.9(d) to hold the Labour Welfare Officer post and thus had no legal right to the office.
- The order of April 17, 1964 did not cast a stigma or punish Kumar; it was an exercise of the company's contractual right to terminate his service.
- In any event, the Court cannot direct reinstatement of G.C. Kumar to the office of Labour Welfare Officer.
First Respondent (G.C. Kumar)'s Contentions
- Kumar contended that he possessed the qualification required by r.9(d): he held a B.Sc. (Agriculture) with Agricultural Economics as a subject and claimed that Agricultural Economics is equivalent to Economics required by r.9(d).
- He sought restoration and back pay and challenged both the appellant's termination and the State Government's rejection of his representation (which was quashed by the High Court).
Table of Precedents Cited
| Precedent / Authority | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Blackstone's Commentaries on the Laws of England (as cited) | Described mandamus as directed to any person or corporation to do what appertains to his/its office and duty; mandamus lies for offices of a public nature. | Used to show historical English authority that mandamus can be directed to corporations where duties are public in nature. |
| Tapping, High Prerogative Writ of Mandamus (as cited) | Discusses English cases where mandamus has been issued to companies to enforce duties imposed by charter/statute and notes some instances of refusal and grant. | Relied on as part of historical background to show that mandamus has been used against companies in appropriate cases. |
| Halsbury's Laws of England (as cited) | States mandamus issues to any person or corporation to do what appertains to their office and is in the nature of a public duty; may be granted where statute obliges action and the duty need not be imposed on a public official or body. | Applied to support proposition that mandamus may issue to a corporation for statutory duties. |
| The King v. The Severn and Wye Railway Co. | Example where mandamus was issued to a railway company to reinstate and lay down a railway. | Illustrative precedent showing mandamus to a corporate/trading body to perform public/statutory duties. |
| The Queen v. The Government Stock Investment Co. Ltd. | Mandamus issued to a company registered under Companies Act to institute a director elected by show of hands. | Used to illustrate that mandamus has been granted to companies for admission/restoration to corporate office. |
| The King v. Lear | Statement that mandamus is granted to prevent failure of justice and for execution of common law, statute, or King's charter; not as private remedy. | Quoted to explain traditional limits on mandamus (prevent failure of justice/public execution rather than private remedy). |
| Ex parte Robins | Mandamus, if granted, must be to do something the company is required to do by an Act of Parliament, not merely by general law. | Quoted to show an authority limiting the grant of mandamus to statutory obligations of companies. |
| Ferris (as cited) | Private domestic corporations are subject to mandamus to perform acts which the law specifically enjoins; mandamus may enforce public duties and private rights in some contexts. | Used to support the view (including U.S. authority) that private corporations can be subject to mandamus for statutory duties or where rights are clear. |
| In re Albert Mills Co. Ltd. (Bombay High Court) | Authority where a High Court issued an order to enforce right of an elected director to act. | Relied on as a domestic instance where a court enforced a corporate office right against a company. |
| Bank of Bombay v. Suleman Somji (Privy Council) | Case concerning right of inspection of register of shareholders; Privy Council treated the remedy as akin to mandamus and applied principles governing mandamus. | Referred to illustrate that mandamus principles may govern relief against corporations; suggested mandamus may issue to trading corporations in certain cases. |
| L.S. Lalvani v. N.M. Shah (Supreme Court) | Statement that the chief function of writ of mandamus is to compel performance of public duties prescribed by statute. | Cited to support the proposition that mandamus principally enforces statutory public duties. |
| Derby v. The Queen | In context of quo warranto: quo warranto may issue for usurping any office provided the office be of a public nature and substantive. | Used in assessing what constitutes a public office. |
| The Queen v. The Guardians of the Poor of St Martins | Lord Campbell's statement that quo warranto will issue if it be an office in which the public have an interest. | Used to elucidate the character of public offices for writ jurisdiction purposes. |
| In the matter of G.A. Nateson | Held that a public office means any office created by statute for discharging functions which affect the public generally or a particular section thereof. | Applied to support the conclusion that Labour Welfare Officer is a public office because duties affect labour/the public. |
| Rochester Corporation v. Regina | Statement urging courts to apply the constitutional remedy of mandamus vigilantly wherever reasonably applicable. | Quoted to support liberal application of mandamus in appropriate cases. |
| T.C. Besappa v. T. Nagappa (Supreme Court) | Observation that Arts. 32 and 226 are wide and courts need not be bound by early English technicalities; High Courts can issue writs as necessary while adhering to broad principles from English law. | Relied upon to justify application of writ jurisdiction under Art. 226 without being constrained by old English procedural limits. |
| P.K. Pillai v. Burmah Shell Oil Storage & Distribution Co. | Cited by appellant in support of argument that mandamus has not been issued to trading corporations. | Court distinguished this and similar authorities on the ground that in those cases no statutory duty was cast on the private party nor was the office a public office. |
| Firm A.L.A.R. Arunachalam v. Kaleeswarar Mills Ltd. | Cited by appellant (similar reliance). | Distinguished by the court for lack of a statutory public duty or a public office in those cases. |
| Sohan Lal v. Union of India | Cited by appellant (similar reliance). | Distinguished for the same reason: absence of a statutory duty cast on private entity and absence of public office. |
| Ram Kishan v. Central Bank of India | Cited by appellant. | Distinguished by the court on grounds stated above. |
| In re U.S. Hariharan | Cited by appellant. | Distinguished for lack of statutory duty/public office in that case. |
| M. Durgaiah v. Agent, Tindur Collieries | Cited by appellant. | Distinguished on the ground that no statutory duty to the public was in issue there. |
| S.P. Saxena v. Manager, A.R. Higher Secondary School | Cited by appellant. | Distinguished for the same reason (no statutory public-duty cast on the private party / not a public office). |
| L.S. Lalwani v. N.M. Shah | Cited by appellant. | Distinguished similarly by the court. |
| R. Lakshmi v. Neyveli Lignite Corporation | Cited by appellant. | Distinguished: in none of these cases was a statutory duty cast nor was the office public in nature. |
| State of U.P. v. Manbodhan Lal | Cited for principle regarding the nature/interpretation of rule 9 and the effect of exemptions. | Relied on to support the court's view that r.9 may be directory in its main part and that rule 13 allows exemption by the State Government. |
| K. Narasimbiah v. B.C. Singri Gowda | Cited alongside Manbodhan Lal concerning the interpretation of rule provisions and exemptions. | Used to reinforce the view that r.9's main part is not automatically imperative and state exemption mechanisms exist under r.13. |
Court's Reasoning and Analysis
The court proceeded in a structured manner:
- Validity of the termination order under the Rules: The court noted that rr.11 and 15 of the U.P. Factories Welfare Officers' Rules require the written concurrence of the Labour Commissioner before termination or punishment of a Labour Welfare Officer and also require that the officer be heard before punishment. It was admitted by the appellant that the Labour Commissioner's concurrence was not obtained. Therefore, the order dated April 17, 1964 was held to be in contravention of rr.11 and 15 and thus invalid. Because rr.11 applied (Kumar was on probation), the termination lacked the required procedural safeguard and was invalid; it was unnecessary for the court to decide whether the order amounted to punishment or stigma.
- Whether mandamus may be issued to the appellant (a trading corporation): The court reviewed English and other authorities (Blackstone, Tapping, Halsbury, and several cases) and observed that mandamus has historically been issued to companies to perform duties where those duties are of a public nature or imposed by statute or charter. The court emphasized that Article 226 of the Constitution confers wide powers on High Courts to issue writs to any "person" (including companies) and that the writs may be moulded to the necessities of a case. Authorities such as The Severn & Wye Railway Co., The Government Stock Investment Co., and domestic decisions were cited to demonstrate that mandamus can be issued to corporations where a statutory public duty exists.
- Character of the office of Labour Welfare Officer and duty's public nature: The court examined the Factories Act and the U.P. Welfare Officers' Rules. Section 49 of the Act obliges occupiers to employ welfare officers in factories with 500 or more workers and allows the State Government to prescribe duties, qualifications and conditions. The Rules define the Labour Welfare Officer's status, make the post substantive and permanent (subject to probation and safeguards), prescribe duties that directly concern health, safety and welfare of a large number of workers and require procedural safeguards (concurrence of Labour Commissioner, hearing before punishment). On these bases the court concluded the Labour Welfare Officer's post is a public office created by statute and the duties are of a public nature. Consequently, mandamus may issue to the appellant corporation to restore a person to that office where appropriate.
- Qualification point (r.9(d)) and its effect: The court considered whether G.C. Kumar lacked the qualification (r.9(d) requires a degree in Economics or Sociology). Kumar admitted holding B.Sc. (Agriculture) with Agricultural Economics as a subject and submitted that Agricultural Economics is equivalent to Economics. The court observed that the two syllabi (Agricultural Economics in B.Sc and Economics in B.A.) appeared dissimilar and that the determination required expert knowledge which the court did not possess. Therefore, the court could not hold that Kumar lacked a legitimate right to the office. The court went on to say that even if he were not qualified, the appointment would be irregular (not void ab initio) because r.9 is not entirely imperative in its main part and r.13 permits the State Government to exempt a person from qualifications. Kumar had applied for exemption and that application was pending; thus restoration would not necessarily expose the appellant to criminal liability under s.92 of the Act.
- Distinguishing authorities relied on by appellant: The court addressed the appellant's authorities which purportedly supported the proposition that mandamus is never issued to trading corporations, and distinguished them on the ground that in those cases there was no statutory duty imposed on the private individual or corporation, nor was the office in question a public office.
- Conclusion of analysis: Given the procedural invalidity of the termination (lack of Labour Commissioner's concurrence), the statutory character of the office and duties, and the unresolved question of qualification (including a pending exemption application), the court concluded the impugned termination was invalid and that the High Court's order restraining the appellant from giving effect to the discharge order and quashing the State Government's order was sustainable.
Holding and Implications
Holding: The appeal is dismissed. The appellate court held that the termination order dated April 17, 1964 was invalid for non-compliance with rr.11 and 15 (no written concurrence of the Labour Commissioner and the procedural safeguards), that the office of Labour Welfare Officer is a public office created by statute and the appellant owed a statutory/public duty in respect of that office (such that mandamus may issue to the appellant in appropriate circumstances), and that the question of the respondent's statutory qualification under r.9(d) could not be resolved against him on the record before the court.
Direct consequences for the parties:
- The High Court's order directing the appellant not to give effect to the April 17, 1964 discharge order and quashing the State Government's November 30, 1964 order stands.
- The appellant is required to comply with that order (which, as the court noted, does not force the appellant to accept work from G.C. Kumar but will entail payment of his salary while the discharge order is not given effect to).
- The appeal is dismissed with costs payable to G.C. Kumar only.
Broader implications emphasized by the court (as reflected in the opinion): the court articulated that mandamus under Art. 226 can be issued to corporations where duties of a public nature are imposed by statute or rule; it applied established principles from English and domestic authorities to the Indian constitutional writ jurisdiction while stressing the wide scope of Art. 226.
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.
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