Patna High Court
Dhagamwar Narsingh vs Chief Inspector Of Mines In India on 27 March, 1957
Equivalent citations: AIR1957PAT611, AIR 1957 PATNA 611
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Raj Kishore Prasad, J.
1. In this case the petitioner, Dhagamwar Narsingh has obtained a rule from this Court, on an application under Articles 226 and 227 of the Constitution for an appropriate writ to quash the order dated the 6th of April, 1956, of the Chief Inspector of Mines in India, opposite party 1 declining to consider on merits the appeal preferred by him under the Proviso to Rule 74 of the Mines Rules, 1955, made under Section 58 of the Mines Act 1952 (Act 35 of 1952) against an order dated the 5th of December, 1955, of opposite party 2, discharging the services of the petitioner.
2. The order of opposite party 1, which is sought to be quashed, is Annexure H, to the application of the petitioner, and the order of discharge passed by opposite party 2 is Annexure D to it.
3. Cause has been shown by the Advocate-General on behalf of opposite party 1, and by Mr. Balbhadra Prasad Singh, on behalf of opposite party 2. Both of them have also filed a counter-affidavit each in reply to the affidavit of the petitioner.
4. The petitioner's case is that on 3-12-1947 he was appointed by opposite party 2 as its Chief Labour Officer, and, was subsequently designated as Chief Personnel Officer, and, was posted to Jamadoba in the sub-division of Dhanbad, which Was then in Monbhum district but now it appertains to Dhanbad district, and was attached to the coal mines of opposite party 2.
5. Before joining the services of opposite party 2, the petitioner was in the services of the Government of India in the Department of Labour from October, 1942 to November, 1947, at first as an Assistant Labour Welfare Adviser, later as Conciliation Officer, and immediately before joining the services of opposite party 2 as Regional Labour Commissioner at Dhanbad. The petitioner was offered the post of its Chief Labour Officer by opposite party 2 in the scheme of looking after the welfare of the workmen in the coal mines, and since his appointment he was looking after the welfare of the labour in those coal mines. The petitioner, therefore, stated that he was qualified to work as a Welfare Officer as contemplated by Rule 72 of the Mines Rules, and since the rate of his appointment in the coal mines of opposite party 2 he had been discharging the duties of a Welfare Officer as contemplated by Rule 73 of the Mines Rules, in accordance with the schedule of this duties prescribed by opposite party 2, a copy of which is attached to the application of the petitioner, and is Annexure A. The petitioner has further stated that he continued to perform his duties in the coal mines of opposite party 2 even after the Mines Rules, 1955 came into force on the 2nd July, 1955.
6. The petitioner then states that on 7-12-1955 he received a notice (Annexure B) from one of the Directors of opposite party 2 whereby the petitioner was discharged from service with effect from the 1st February, 1956 on the ground that his services were no longer required, and, he was further directed to cease to work from the date of receipt of the notice.
7. The petitioner, thereafter, preferred an appeal on 20-12-1955 to the Chief Inspector of Mines of India, opposite party 1, as provided by the Proviso to Rule 74 of the Mines Rules, 1955. Opposite party 1, however, ultimately after hearing the petitioner rejected his appeal on 6-4-1956 on the ground that as the petitioner was not appointed a Welfare Officer under Rule 72 (1) of the Mines Rules, 1955, Proviso to Rule 74 of the said Rules was not applicable to him and, therefore, the appeal of the petitioner could not fee entertained by him.
8. The order of opposite party 1, is Annexure H to the affidavit of the petitioner, and, is to the following effect:
"Mr. D. Narsingh was appointed as Chief Labour Welfare Officer of the Tata Iron and Steel Co. Ltd., by appointment letter dated 23-9-1947. He worked in this capacity for some years and a notice was served on him terminating his services with effect, from 1st February, 1956. The notice 'runs as follows :
As your services are no longer required by us, they will stand terminated as from 1st February, 1956. You will be paid your salary for December, 1955 but you are not required to work from the date of receipt of this letter.
2. You will also be paid one month's, salary in lieu of one Calendar month's notice. The notice period will commence from 1st January, 1956.
3. You will also be paid salary in lieu of any leave that may be due to you under the rules.
4. You will be paid proportionate profit sharing bonus for 1955-56 when declared.
5. Please arrange to vacate the quarters allotted to you by 31st January, 1956. On your giving vacant possession of the quarters by this date your dues will be settled.' After receipt of the notice, Memorandum of appeal was filed by Mr. D Narsingh under Rule 74 of the Mines Rules, 1955.
Mr. Narsingh has contended in his memorandum of appeal that his appointment should be treated as that of Welfare Officer under Rule 72 of the Mines Rules aforesaid and that his dismissal has been unjustified and uncalled for and irregular. The company was asked by me to submit its comments upon the memorandum of appeal filed by Mr. Narsingh. The Company has submitted its comments and it has contended that the appeal filed by Mr. Narsingh is incompetent as he was not appointed as a Welfare Officer under Rule 72 of the Mines Rules, 1955. The first point, therefore, which comes up for my consideration is as to whether Mr. Narsingh has been appointed as a Welfare Officer within the meaning of Rule 72 of the Mines Rules, 1955.
The term 'Welfare Officer' hag not been defined anywhere in the Mines Rules aforesaid, and determine as to whether Mr. Narsingh should be treated as Welfare Officer or not, one has to consider the duties of the Welfare Officer as laid down in Rule 73 of the Mines Rules, 1955. Along with this memorandum of appeal Mr. Narsingh has given extract from the revised memorandum for the Personnel Department of the Collieries of the Tala Iron and Steel Co. Ltd. The extract from the revised memorandum for the Personnel Department of the Collieries of the Tata Iron and Steel Co. Ltd. lays down that the duties of the officers of that Department would be to promote the security, health, welfare of the workers in the interest of the protective efficiency and that they would be responsible for seeing that labour in turn was treated with justice and fairness.
Mr. Narsingh in his letter dated 6-2-1956 has also given details of the duties he was performing.
On taking notice of the duties which were being performed by Mr. Narsingh in the light of the duties of the Welfare Officer as laid down in Rule 73, it would be found that Mr. Narsingh was discharging the duties very akin to those of the Welfare Officer as contemplated by Rule 72. Therefore, there would be no difficulty in coming to the conclusion that Mr. Narsingh was performing duties akin to those of Welfare Officers as contemplated by Rule 72 and he was qualified to work as a Welfare Officer.
The next point for consideration is as to whether Mr. Narsingh should be deemed to have been appointed as a Welfare Officer under Rule 72 of the Mines Rules, 1955.
The requirements of this rule in this connection are that for every mine a Welfare Officer shall be appointed and a written notice of such appointment shall be given to the Chief inspector of Mines. Therefore, Rule 72 clearly contemplates appointments made in pursuance of these rules after the date of their enforcement. It is true that the owner, agent, or manager can, in suitable casps, approach the Chief Inspector of Mines for appointment of those persons who have been working as Welfare Officer before the enforcement of these rules and where their qualifications fall short of those laid down in Rule 72, but then each case of appointment, made with Or without the approval of the Chief Inspector of Mines, has got to be intimated to the Chief Inspector of Mines by notice in writing.
This, however, is to be done by the owner, agent or manager of the mine and not by the person who has been working in the mine from before discharging duties akin to those of the Welfare Officer. In the present case, no written notice has been received in the office of the Chief Inspector of Mines regarding the appointment of Mr. Narsingh as the Welfare Officer of the Mine and it is therefore difficult to see how Mr. Narsingh can be treated to have been appointed as a Welfare Officer under Rule 72 of the aforesaid Mines Rules. As already pointed out, it was, however, the duty of the owner, agent or manager of the mine to give such notice of appointment of Mr. Narsingh; particularly when they taking work from him akin to that of Welfare Officer even for several months after the enforcement of these rules.
Rule 74 has got application only in a case where appointment has been made of a Welfare Officer under Rule 72. As already stated, the appointment of Mr. Narsingh has not been notified to the Chief Inspector of Mines and as such Rule 74 of the Mines Rules 1935 is not applicable. The appeal, therefore, cannot be entertained by me.
Mr. Narsingh in his memorandum has contended that his dismissal is unjustified, uncalled for and irregular. This, however, is a question for which he may seek redress in some proper Court of law.
The parties are being informed accordingly."
9. Opposite party 1, the Chief Inspector of Mines in India, has filed a counter-affidavit in which he has stated that the appeal preferred before him was not competent, because the petitioner was neither appointed a Welfare Officer within the meaning of Rule 72 of the Mines Rules 1955, nor in accordance with the provisions of the Rules nor he was qualified to be so appointed.
10. Opposite party 2, in its counter-affidavit, has stated that the petitioner, was Principal Adviser to the Superintendent of Collieries in all personnel matters relating to all its collieries. It was denied that since his appointment the petitioner has been discharging the duties of a Welfare Officer as contemplated by Rule 73 of the Mines Rules, 1955. Opposite party 2 further stated that no Welfare Officer was appointed during the relevant period and accordingly no notice was given to the Chief Inspector of Mines as required by Rule 72, Clause (4) of the Mines Rules, 1955.
11. Mr. Shivnugrah Narayan, in support of the rule, attacked the validity of the order of the Chief Inspector of Mines in India, opposite party 1, (Annexure H), firstly, on the ground that the petitioner was validly appointed as a Welfare Officer within the meaning of Rule 72 (1) of the Mines Rules, 1955, and, as such, the failure to give a notice by opposite party 2 to opposite party 1 as required by Sub-rule (4) of Rule 72 of the Mines Rules, 1955, did not invalidate his appointment, and, therefore, opposite party 1 has wrongly held that he was not competent to hear the appeal of the petitioner preferred before him under the Proviso to Rule 74 of the Mines Rules, 1955 and consequently, he failed to exercise his jurisdiction vested in him by law in declining to decide the appeal of the petitioner on merits. Secondly, in this connection, he contended that Rule 72 (4) of the Mines Rules was directory, and not mandatory, and therefore, the failure to comply with the provisions of Rule 72 (4) of the Mines Rules, 1955, will not invalidata the appointment of a Welfare Officer under Rule 72 (1) of the Mines Rules.
12. The principal Question of law for determination on the present rule, therefore, is: Whether the petitioner was a Welfare Officer within the meaning of Rule 72 (1) of the Mines Rules 1955?
13. In order to answer this question, it is necessary to read Rules 72 and 74 of the Mines Rules, 1955. Rule 72 deals with the appointment of a Welfare Officer of a mine and his qualifications. Rule 73 prescribes the duties of such Welfare Officers. Rule 74 prescribes their conditions of service. The proviso to Rule 74 confers a right of appeal on such a Welfare Officer, in the case of his discharge or dismissal to the Chief Inspector, and it further provides that his decision thereon shall be final, and it shall be binding on the owner, agent or the manager of the mine as the case may be.
14. Rules 72 and 74 read as below :
"72. Welfare Officers : (1) In every mine wherein 500 or more persons are ordinarily employed there shall be appointed at least one Welfare Officer;
Provided that if the number of persons ordinarily employed exceeds 2,000, there shall be appointed additional Welfare Officers on a scale of one for every 2,000 persons or fraction thereof.
(2) No person shall act as a Welfare Officer of a mine unless he possesses--
(a) a University degree;
(b) a degree or diploma in social science or Labour welfare from any institution recognised by Government and preferably practical experience of handling labour problems in any industrial under-taking for at least three years; and
(c) a knowledge of the language of the district in which the mine is situated or the language understood by the majority of persons employed in the mine:
Provided that in case of a person already in service as a Welfare Officer in a mine, the above qualifications may, with the approval of the Chief Inspector, be relaxed.
* * * * * (4) A written notice of every such appointment, authorisation, discharge or dismissal and of the date thereof shall be sent by the owner, agent or manager to the Chief Inspector within 7 days from the date of such appointment, authorisation, discharge or dismissal.
74. Conditions of service -- (D A Welfare Officer shall be given appropriate status corresponding to the status of the other executive heads of the mine.
(2) The conditions of service of a Welfare Officer shall be the same as of other members of the staff of corresponding status in the mine : Provided that, in the case of discharge or dismissal, the Welfare Officer, shall have a right of appeal to the Chief Inspector whose decision thereon shall be final and binding upon the owner, agent or manager of the mine as the case may be."
15. Rule 74 has to be read along with Rule 72, because "the Welfare Officer" mentioned in the proviso to Rule 74 refers to a Welfare Officer appointed under Rule 72 (1) and to none else. Reading Rules 72 and 74 thus, it is plain that before a Welfare Officer, who has either been discharged or dismissed can have a right of appeal to the Chief Inspector of Mines in India, he must be a Welfare Officer appointed under Rule 72 (1).
If there is a Welfare Officer who is not appointed under Rule 72 (1), then in such a case the proviso to Rule 74 will not apply to such a Welfare Officer, and he with not be entitled to appeal to the Chief Inspector against any order of discharge or dismissal which may be passed by the owner, agent or manager of the mine, as the case may be in which he is working. The sine qua non for the application of the proviso to Rule 74, therefore, is that such a Welfare Officer must have been appointed under Rule 72 (1); A person may be working as a Welfare Officer, or performing the duties which are prescribed under Rule 73 for Welfare Officers appointed under Rule 72 (1) or he may be performing the duties "akin" to those of such a Welfare Officer, but if he is not in fact appointed under Rule 72 (1) he cannot take advantage of the benefit conferred by the proviso to Rule 74 of the Mines Rules, 1955.
16. In the instant case, Mr. Shivanugrah Narayan has contended that the petitioner was a Welfare Officer as contemplated by Rule 72 (1), because on the finding of the opposite party 1 himself, as mentioned in Annexure H, the petitioner had been found to be discharging the duties "very akin" to those of the Welfare Officer as contemplated by Rule 72, in that, the definite finding of opposite party 1 is that the petitioner "was performing duties akin to those of Welfare Officer as contemplated by Rule 72 and he was Qualified to work as a Welfare Officer".
Mr. Shivanugrah Narayan, therefore, argued that the real reason given by opposite party 1 for holding that the petitioner cannot be treated to have been appointed as a Welfare Officer under Rule 72 (1) of the Mines Rules was that he thought that as no notice by opposite party 2 had been given to him, as required by Rule 72 (4). the petitioner could not be treated as such a Welfare Officer appointed under Rule 72 (1) of the Mines Rules, 1955. In my opinion, this argument presented by Mr. Shivanugrah Narayan is not well founded, and, therefore, it cannot be accepted.
17. It is conceded by the petitioner that in fact he has never been appointed a Welfare Officer as such under Rule 72 (1) of the Mines Rules, 1855. He was appointed by opposite party 2 on 3-12-1947 before the Mines Rules, 1955, came into force on the 2nd July, 1955, and after the Mines Rules, 1955 came into force, the petitioner concedes that he WPS not appointed a Welfare Officer as contemplated in Rule 72 (1). The proviso to Sub-rule (2) to Rule 72 provides that in case of a person already in the service as a Welfare Officer in a mine, the qualifications mentioned in Rule 72 (2) may, with the approval of the Chief Inspector be relaxed. The petitioner may have been working as a Welfare Officer, or performing the duties "very akin to those of Welfare Officers", to quote the words of opposite party 1, he may have all or most of the qualifications required by Sub-rule (2) of Rule 72 for being appointed a Welfare Officer, but as long as he is not actually in fact appointed a Welfare Officer under Rule 72 (1), he cannot claim the benefit of the proviso to Rule 74 of the Mines Rules, 1955.
18. Further, Sub-rule (1) of Rule 72, contemplates appointment of at least one Welfare Officer for every mine where 500 or more persons are already employed. The proviso to Sub-rule (1) to Rule 72 further provides that if the number of persons already employed exceeds 2.000, there shall be appointed additional Welfare Officers on a scale of one for every 2,000 persons or fraction thereof. Admittedly, on the petitioner's own case, he has been working as a Welfare Officer not for one mine, but for all the mines of opposite Party 2. In such circumstances, in no view of the matter the petitioner can be deemed to be a Welfare Officer appointed under Rule 72 (1) of the Mines Rule, 1955.
19. In my judgment, therefore, the petitioner, not being a Welfare Officer appointed under Rule 72 (1) of the Mines Rules, 1955, had no right of appeal to the Chief Inspector of Mines, opposite party 1, under the proviso to Rule 74. against the order of his discharge passed by opposite party 2, and, as such, opposite party 1 was right in holding that he was not competent to entertain the appeal of the petitioner, and, therefore, he had no jurisdiction to decide the appeal on the merits.
20. In this view of the matter, it is not necessary to express any opinion on the argument of Mr. Shivanugrah Narayan that Rule 72 (4) of the Mines Rules, 1955, is directory, and not mandatory, and that the omission of the owner, agent or manager of the mine, to give a notice of every appointment of a Welfare Officer under Rule 72 CD to the Chief Inspector will not invalidate the ap-pointment of a Welfare Officer.
20. In the present case, the petitioner on his own case was never appointed a Welfare Officer under Rule 72 (1). Opposite party 2 has also definitely stated in his counter-affidavit that during the relevant period no Welfare Officer as contemplated by Rule 72 (1) had at all been appointed by it. Therefore, the question of failure to comply with Rule 72 (4) does not arise here.
21. Mr. Shivanugrah Narayan, is not correct also in his-contention that opposite party 1 decided that the petitioner was not a Welfare Officer as contemplated by Rule 72 (1) simply because no notice of his appointment was sent by opposite party 2 to the Chief Inspector of Mines as required under Rule 72 (4). Reading the order of opposite party 1 (Annexure H) as a whole it is clear that what he meant to say was that if the petitioner had in fact been appointed a Welfare Officer under-Rule 72 (1), then in such a case a notice of his appointment would have been given by opposite party. 2 to the Chief Inspector as required by Rule 72 (4), and. therefore, the fact that no notice under Rule 72 (4), was given by opposite party 2 to the Chief Inspector also goes to show that the petitioner was not actually appointed a Welfare Officer under Rule 72 (1) of the Mines Rules.
But that apart, when it is conceded by the petitioner himself that he was not appointed a Welfare Officer under Rule 72(1), the question of application of the proviso to Rule 74 to him did not arise, and therefore, the petitioner had no right of appeal under the Proviso to Rule 74 to the Chief Inspector against the order of discharge passed by opposite party 2.
22. It follows, therefore, for the reasons given above, that the decision, of opposite party 1, dated 6-4-1956, Annexure H. declining to entertain the appeal of the petitioner preferred under the Proviso to Rule 74 of the Mines Rules, 1955 is correct.
23. In the result, the rule must be discharged as the petitioner has failed to make out a case for issue of any writ under Article 226, or any direction under Article 227, of the Constitution, to the opposite party quashing the order of opposite party 1 dated 6-4-1956 (Annexure H) and directing him to rehear the appeal on the merits.
24. The application accordingly fails, and is hereby dismissed; but, in the circumstance of the present case, there will be no order for costs.
Ramaswami, C.J.
25. I agree.