Case: Pratap Chandra Sen Vs. Commissioner of Labour, Bihar Patna &amp; Another

permanent under the rules, that the tenure was not affected by this having been transferred to a mine in Orissa and that since the disciplinary control against him was in fact exercised from Jamshedpur in Bihar, the matter relating to the validity of the exercise of such control is one that is entirely within the purview of the State Government and the State Labour Commissioner of Bihar. It was because of this contention and because further facts were required in order to make sure about the factual foundation which raises the question, that we permitted the appellant to file fresh affidavit and gave an opportunity to the second respondent to file an affidavit in answer thereto.7. On the material now before us the facts appear to be as follows. Admittedly - and as previously stated the appellant was recruited as a Personnel Officer in the Steel Melting Shop (Factory) No. 2 of the Tata Iron and Steel Co. at Jamshedpur and continued as such till 1950. In 1950 his assignment was transferred to certain mines of the Company at Jamshedpur and since 1953 that assignment was again transferred to Garumahishani in Orissa. According to the appellant his appointment as a Personnel Officer was really an appointment as a Welfare Officer right front the start and he continued as such notwithstanding that his assignment was transferred to mines since 1950. The second respondent contends that while Welfare Officers are part of the Personnel Department and therefore every Welfare Officer is also a Personnel Officer, all Personel Officer and not Welfare Officers and that the appellant was only a Personnel Officer and not a Welfare Officer. But whether this is so or not in general, there is, it is said for the appellant, considerable material relating to this appellant by way of correspondence between the Company and the Labour Commissioner about him, which we have been taken through and on the basis of which it is contended that the appellant was throughout understood to be a Welfare Officer presumably because he was doing the duties of a Welfare Officer or continued to be in that cadre. In view of what follows, we do not feel called upon to decide about the correctness or otherwise of that contention. The correspondence that has been brought to our notice consists inter alia of a circular letter from the Labour Commissioner, Bihar, Patna, dated September 19, 1952 and a reply thereto of the General Manager of the Company dated December 2, 1952. Now, it is to be noticed that by these dates the Bihar Factories Welfare Officers Rules, 1952, though promulgated did not actually come into force. As already stated they came into force on March 1, 1953. Besides, in the very letter of the General Manager to the Commissioner of Labour dated December 2, 1952, it is mentioned that the Company have applied to the Government of Bihar for the grant of exemption from the provisions of S. 49 of the Factories Act. It would appear that this application for exemption itself was pending till October, 1953. In addition, there are two facts in the way of the appellant.Firstly, there is no. specific order of the Company subsequent to the coming into force of the Factories Act or the Rules thereunder appointing the appellant as a Welfare Officer thereunder. The mere fact, brought to our notice, that the Labour Commissioner exempted him from the requisite qualifications is not enough and does not by itself show that the management took advantage of it and appointed or recognised him as such.Secondly, even though the appellant was originally appointed as a Personnel Officer (even assuming this for the sake of argument to be an appointment of a Welfare Officer as then understood) there were, at the time, no. service conditions applicable to his appointment which may be said to have continued in his favour and which would have entitled him to permanency of tenure or protection against arbitrary discharge. These facts have been frankly admitted before us.The further difficulty in the way of the appellant is that by the date when these Rules came into operation he was no. longer attached to a factory but was attached to a mine. In the circumstances, it is difficult to accept the contention of learned counsel for the appellant that merely because he was appointed as a Personnel Officer in 1947 (which, for the sake of argument may be assumed to have been an appointement as a Welfare Officer as then understood) he must be taken to have been continued as a Welfare Officer and as appointed under the Act and the Rules and that such continuance entitles him to protection against arbitrary discharge under the Rules.We are, therefore unable to interfere with the order of the Labour Commissioner in question. In the view we have taken of the facts as they appear on the record before us, it is unnecessary to decide the question whether the Labour Commissioner was right in his assumption that since the Rules are Bihar Rules he lacked jurisdiction to give relief in respect of the alleged arbitrary disciplinary action of the employer against him which was in fact exercised from Jamshedpur in Bihar as against a person working in Orissa.8. The appeal is accordingly dismissed. As regards the costs in this case, so far as the Government first respondent is concerned, we have not decided the point of law which was raised with reference to the Labour Commissioners Order. The Government was interested only in that question. As regards the second respondent, he was allowed, by an order of the Chamber Judge, to continue to be a party on the basis that his continuance would be at his own risk as to costs. At the last hearing before us this was brought to our notice and we passed an order that notwithstanding that order the question of costs subsequent to the previous hearing would be considered by us. We have now given our consideration thereto.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Firstly, there is no. specific order of the Company subsequent to the coming into force of the Factories Act or the Rules thereunder appointing the appellant as a Welfare Officer thereunder. The mere fact, brought to our notice, that the Labour Commissioner exempted him from the requisite qualifications is not enough and does not by itself show that the management took advantage of it and appointed or recognised him as such.Secondly, even though the appellant was originally appointed as a Personnel Officer (even assuming this for the sake of argument to be an appointment of a Welfare Officer as then understood) there were, at the time, no. service conditions applicable to his appointment which may be said to have continued in his favour and which would have entitled him to permanency of tenure or protection against arbitrary discharge. These facts have been frankly admitted before us.The further difficulty in the way of the appellant is that by the date when these Rules came into operation he was no. longer attached to a factory but was attached to a mine. In the circumstances, it is difficult to accept the contention of learned counsel for the appellant that merely because he was appointed as a Personnel Officer in 1947 (which, for the sake of argument may be assumed to have been an appointement as a Welfare Officer as then understood) he must be taken to have been continued as a Welfare Officer and as appointed under the Act and the Rules and that such continuance entitles him to protection against arbitrary discharge under the Rules.We are, therefore unable to interfere with the order of the Labour Commissioner in question. In the view we have taken of the facts as they appear on the record before us, it is unnecessary to decide the question whether the Labour Commissioner was right in his assumption that since the Rules are Bihar Rules he lacked jurisdiction to give relief in respect of the alleged arbitrary disciplinary action of the employer against him which was in fact exercised from Jamshedpur in Bihar as against a person working in Orissa.8. The appeal is accordingly dismissed. As regards the costs in this case, so far as the Government first respondent is concerned, we have not decided the point of law which was raised with reference to the Labour Commissioners Order. The Government was interested only in that question. As regards the second respondent, he was allowed, by an order of the Chamber Judge, to continue to be a party on the basis that his continuance would be at his own risk as to costs. At the last hearing before us this was brought to our notice and we passed an order that notwithstanding that order the question of costs subsequent to the previous hearing would be considered by us. We have now given our consideration thereto.