R.M. Lodha, J.
1. Constitutional validity of Section 31(2)(a) of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 and Rule 31(1) of the Maharashtra Beedi and Cigar Workers (Conditions of Employment) Rules, 1968 amended vide Maharashtra Beedi and Cigar Workers (Conditions of Employment) Amendment Rules, 1977 are the principal common questions involved in this group of six writ petitions and therefore, all these writ petitions have been heard together and are disposed of by this common judgment.
2. To appreciate the contentions raised in these writ petitions challenging the constitutional validity of the aforesaid provisions, facts of writ petition No. 15 of 1989, which are in narrow compass, may be adverted to firsts. Smt. Fulwantabai w/o. Ishwardas Meshram (for short, the 'worker') in the said writ petition filed an appeal under Section 31(2) of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 (for short, the 'Beedi Workers Act, 1966') before the Assistant Commissioner of Labour, Gondia on 24.10.1986. It was inter alia averred in the said appeal by her that she was beedi roller and working as such for the last 4-5 years for M/s. Vidarbha Tobacco Products (P) Ltd., Ekodi (for short, the 'petitioner-employer') through Shri Chand Khan Mohammed Sheikh and Shri Khalil, the respondents 3 and 4 (for short, the 'contractors'). According to the worker, the petitioner-employer and the contractor did not provide log book/card to the worker and her correct name was not recorded in the register and for that an enquiry was made on spot by the Government Labour Officer in 25.9.1986. Due to this enquiry, the contractor terminated the services of the worker with effect from 29.6.1986 after receiving her beedis and despite repeated requests, the contractor did not give tobacco and leaves to her. On the basis of these facts, the worker prayed before the Assistant Commissioner of Labour that she should be reinstated with back wages from the date of her termination. The contractor as well as petitioner-employer contested the appeal before the Assistant Labour Commissioner by filing the reply on 26.3.1987. Though the reply was common by them, the contractor and employer set up the plea that he did not have any knowledge as to whether the worker had been in service with the contractor at any time. It was admitted by them that the Government Labour Officer, Gondia visited the site on 25.9.1986. However, in para 4 of the reply, the employment of worker was denied and it was for that reason that no requisite notice was required to be served upon her.
Worker examined herself as well as one Devdas Ganpat Bawane. On the other hand, the petitioner-employer and the contractor examined Shri Chandkhan Sheikh.
The Assistant Labour Commissioner after holding the enquiry and hearing the parties, held that the termination of the worker was bad in law and accordingly by the said judgment dated 6.6.1988, set aside the termination of the workman and directed the employer and the contractor to reinstate the worker with immediate effect. The worker was held entitled to guaranteed wages of 50 per cent till her reinstatement. Dissatisfied with the judgment passed by the Assistant Labour Commissioner allowing the appeal of worker, setting aside her termination and directing the petitioner-employer to reinstate her with 50 per cent of guaranteed wages till reinstatement, has given rise to Writ Petition No. 15 of 1989 and similar other five writ petitions relating to different workers by different employers.
3. Challenge to the constitutional validity of Section 31(2)(a) of the Beedi Workers Act, 1966 and Rule 32 of the Beedi Workers Rules, 1968 as amended by the Maharashtra Beedi and Cigar Workers (Conditions of Employment) Rules, 1977 would not have been required to be gone into by applying the doctrine of de-facto as laid down by the Apex Court in Gokaraju Rangaraju v. State of A.P. : 1981CriLJ876 and other decisions including the judgment of this Court in M/s. Haji Latif Gani. v. Union of India & Ors. (Writ Petition No. 2790 of 1990 decided on 29th April, 1991) with connected matters dealing with these very questions, but for the insistence by all the learned counsel appearing on behalf of the parties to decide the constitutional validity of the aforesaid provision on merit since these are being raised time and again. In Gokaraju Rangaraju's case (supra), the Apex Court held as under :-
'The defective appointment of a de-facto judge may be questioned directly in a proceeding to which he be a party, but it cannot be permitted to be questioned in a litigation between the private litigants, a litigation which is of no concern or consequence to the Judge except as a Judge. Two litigants litigating their private titles cannot be permitted to being in issue and litigate upon the title of a Judge to his office. Otherwise, as soon as a Judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the Judge is no Judge. A Judge's titled to his office cannot be brought into jeopardy in that fashion. Hence, the rule against collateral attack on validity of judicial appointments. To question a Judge's appointment in an appeal against his judgment is, of course, such a collateral attack.'
4. In Writ Petition No. 2790 of 1990 and other connected matters (supra) decided by this Court on 29th April, 1991, challenging the order passed by the Assistant Labour Commissioner in the appeal under Section 31(2)(a) of the Beedi Workers Act, 1966 and the rules framed thereunder, the constitutional validity of Section 31(2)(a) and the aforesaid rules were questioned and applying the doctrine of de-facto, this Court held that the writ petitions which are basically under Art. 227 of the Constitution of India, the collateral challenge to the authority in competence of the Assistant Commissioner of Labour exercising the power under Section 31(2)(a) cannot be allowed to be raised and this Court held as under :-
'9) The learned counsel for the petitioner urged that Section 31 read with Section 44(n) of the Act provides for excessive delegation to the Executive Powers under these provisions also are without any guideline and have resulted in violation of Articles 14 and 19(1)(g) of the Constitution. Another limb of the submission is that the function of the appellate authority under Section 31 of the Act is judicial. However, the Assistant Commissioner of Labour who has been notified as appellate authority is not equipped with either with such quality or character. As such, the Assistant Commissioner of Labour is not competent to exercise jurisdiction under Section 31 of the Act. The impugned orders thus passed have incurred a disability of being void ab-initio.
Tenability of this ground was objected. It is urged on behalf of the respondents that the petitioners cannot avail this ground in these proceedings under Article 227 of the Constitution since they are collateral for the purposes of ground as raised. Reliance is placed on decision in Gokaraju Rangaraju v. State of Andhra Pradesh : 1981CriLJ876 . It is held therein that.
The learned counsel for the petitioners made a submission that no such plea was raised in the return. They pointed out that the challenge as posed was incorporated in the petition by way of amendment. Even in reply, the question of entitlement of such ground was not pleaded. As such, according to the learned counsel for the petitioners, respondents now cannot object to the tenability of the ground.
Any plea of tenability of the challenge in particular proceedings relates to the jurisdiction of the Court. It is obligatory on the part of the petitioners to satisfy as regards propose to raise. Not raising the plea of tenability of a ground by adversary does not permit the petitioners to assume entitlement of raising such ground and the Court cannot usurp jurisdiction for adjudication of such ground. It is then contended on behalf of the petitioners that in the instant proceedings, no material is even for the purpose of the ground. They submitted that the petitions are filed under Article 226 of the Constitution.
No doubt, the petitions have been styled as under Articles 226 and 227 of the Constitution but the petitioners have approached to this Court after adjudication and decision in appeal on merits. The petitioner on facts are not justified to invoke Article 226 of the Constitution. They are virtually and in fact are under Article 227 of the Constitution wherein this Court can ascertain whether the subordinate Court or Tribunal while exercising jurisdiction acted within in accordance with the limits of law. The petitioner while assailing the orders of Assistant Commissioner of Labour in exercise of power under Section 31 of the Act, cannot now challenge his authority or competence, for the purposes of the ground as raised. These proceedings which are basically under Article 227 of the Constitution are collateral. As such, the challenge is not available. The petitioner, therefore, cannot be permitted to question the authority or competence of the Assistant Labour Commissioner'.
5. However, the learned counsel appearing on behalf of the respondents submitted that to settle controversy once for all, about the constitutional validity of the provision of Section 31(2)(a) of the Beedi Workers Act, 1966 and Rule 32 as amended in the year 1977 under the Beedi Workers Rules, 1968 on merits with reference to the contentions raised by the learned counsel for the petitioner-employer, may be examined.
6. Mr. Qazi, the learned counsel for the petitioner-employer first of all has challenged the vires of Section 31(2)(a) of the Beedi Workers Act, 1966. Mr. Qazi, the learned counsel for the petitioner-employer contended that the said Section 31(2)(a) of the Act is violative of Article 14 of the Constitution of India as it confers unguided and uncontrolled powers on the State Government to appoint any person or anybody as an appellate authority for hearing the appeal filed by the employee challenging his/her discharge, dismissal or retrenchment. According to Mr. Qazi, in the absence of any guidelines provided in the said Section, as a result of uncontrolled and unbridled power given to the executive, the State Government has conferred such power of hearing appeals under Section 31(2)(a) to the Assistant Commissioner of Labour who, though discharge judicial functions while hearing such appeals, but are not competent to discharge such judicial functions. The contention of Mr. Qazi is that in the absence of any guidelines in Section 31(2)(a) and unbridled and uncontrolled power having been conferred on the State Government, the State Government has misused such power by conferring the powers of hearing the appeals under Section 31(2)(a) upon the Assistant Labour Commissioner and such misuse of power by the State Government would also make the provision contained in Section 31(2)(a) unconstitutional and ultra vires.
6-A. Beedi Workers Act, 1966 was enacted to provide for the welfare of workers in Beedi and Cigar establishments and to regulate the conditions of their work and the matters connected therewith. Constitutionality of the entire Act came up for consideration before the Supreme Court in Mangalore Ganesh Beedi Works v. Union of India & Ors. : (1974)ILLJ367SC . The Supreme Court after examining the historical background leading to the enactment of this Act, observed that the Beedi Industry was an unorganised and scattered and it called for radical reforms. It was further observed that the service conditions of the workers as well as the conditions of working place were bad. The workers which included much force of women and children, were not provided basic amenities and the service conditions obtaining in the industry were far from being satisfactory. The Apex Court considered the various systems adopted in the manufacture of beedis. These systems prevalent in the manufacture of beedis are known as, factory system, contract system of employment and out-workers system. In factory system, the manufacturer is an owner of the factory. Workers gather and work under his supervision as his employees. In the contract system, the proprietor gives to the middlemen quantities of beedi leaves and tobacco and the contractor on receiving the materials manufactures beedies (i) by employing directly labourers and manufacturing beedies or (ii) by distributing the materials amongst the home workers, as they are called, most women who manufacture beedis in their own homes with the assistance of other members of their family including children and in the third system of out-workers, the workers roll beedis out of the tobacco and beedi leaves supplied by the proprietor himself without the agency of middlemen. The Supreme Court then referred to various committees appointed from time to time in this connection and observed that the Act came into existence in the background of these reports wherein the employment of women and children, wage structure in the industry were considered and solution of unhealthy working conditions under the miserable employment, long working hours, unregulated employment and deduction from wages were recommended. The Supreme Court, thus, observed :-
'17. The Beedi and Cigar Workers (Conditions of Employment) Act, 1966 is an Act to provide for the welfare of the workers in beedi and cigar establishments and to regulate the conditions of their work and for matters connected therewith. The special feature of the industry was the manufacture of beedis through contractors and by distributing work in the private dwelling house, where the workers took raw materials given by employers of contractors. The relationship between employers and employees was not well defined. The application of the Factories Act met with difficulties. The labour in the industry was unorganised and was not able to look after its own interests. The industry was highly mobile. The attempt of some of the States to Legislate in this behalf was not successful. The necessity for central legislation was felt. A bill was not successful. The necessity for central legislation was felt. A bill was mooted to provide for the regulation of the contract system of work. Licensing of beedi and cigar industrial premises and matters like health, hours of work, spread over, rest periods, over-time, annual leave with pay, distribution of raw materials etc. The anxiety was expressed by several Committees to introduce some regulations in the employer-employee relationship and to obtain certain benefits to the employees with were denied to them'.
'26. The scheme of the Act relates to provisions regarding health and welfare, conditions of employment, leave with wages, extension of benefits by applying other Act to Labour. To illustrate, Section 28 of the Act extends benefits of the Payment of Wages Act to industrial premises, Section 31 of the Act provides for Security of service, Section 37 of the Act extends the benefit of Industrial Standing Orders Act, 1946 again. Section 37(3) of the Act makes provisions of the Maternity Benefit Act applicable to every establishment, Section 38(1) of the Act applies the safety provisions contained in Chapter IV of the Factories Act to industrial premises. Section 39(1) of the Act makes the Industrial Disputes Act, 1947 applicable to matters arising in respect of every industrial premises. Section 39(2) of the Act provides that disputes between an employee and an employer in relation to issue of raw materials, rejection of beedis and cigars, payment of wages for the beedis and cigars rejected by the employer, shall be settled by such authority as the State Government may specify. An appeal is provided to the appellate authority whose decision is final. Section 39(1) of the Act applies to industrial premises. Section 39(2) of the Act applies to every establishment'.
'28. The pith and substance of this Act is regulation of conditions of employment in the beedi and cigar industry. The Act deals with particular subject matter as regards the establishments and industrial premises. These matters are regulation of conditions of employment in the industry and the industrial relations between the employer and the employee. Entries 22 to 24 in List III are wide enough to cover this piece of labour welfare measure. Entry 22 deals with labour welfare. Entry 23 deals with social security, employment and unemployment. Entry 24 deals with welfare of labour including conditions of work, provident funds, employer's liability, workmen's compensation, invalidity and old age pensions and maternity benefits. The Act is valid and falls within Entries 22, 23 and 24 of List III'.
7. Challenge to Section 31 of the Beedi Workers Act, 1966 was negatived in the aforesaid case and the Supreme Court, upholding the said provision, held as under :-
'69. It has been contended that Section 31 of the Act which provides one month's notice in lieu of notice of dismissal was an unreasonable restriction. The reason advanced was that the Act has not defined the word 'wages' and, therefore it is not possible to calculate wages. Section 27 of the Act prescribed the rate for calculating wages during the period of leave. Section 39(1) of the Industrial Disputes Act applies to matters in respect or every industrial premises. Section 2(rr) of the Industrial Disputes Act defines wages. The definition of wages in the Industrial Disputes Act applies to workers in industrial premises contemplated by the Act. Home workers are not included in industrial premises because they work in private dwelling houses which are establishments. The definition of wages in the Industrial Disputes Act will apply to workers who are paid on monthly basis. Section 28(1) of the Act empowers the State Government to direct that the provisions of the Payment of Wages Act, 1936 shall apply to employees in establishments to which the Act applies. Section 2(6) of the Payment of Wages Act defines 'wages' to include inter alia any remuneration to which the person employed is entitled in respect of any leave period. Some aid may be had from the definition of wages in the Payment of Wages Act, viz., wages include leave wages. Therefore, the word 'wages' in Section 31 of the Act will mean wages which are calculated under Section 27 of the Act. This can be calculated in both in the cases of workers in industrial premises and home workers in establishments. Therefore, the provisions contained in Section 31 of the Act cannot be said to be unreasonable restriction'.
8. Despite the fact that the entire Beedi Workers Act, 1966 has been held to be constitutionally valid by the Supreme Court in the Mangalore Beedi Works' case (supra), Mr. Qazi the learned counsel for the petitioner-employer contended that the Supreme Court did not examine the constitutionality of Section 31(2)(a) of the Beedi Workers Act, 1966 from the point of view that did not provide any guidelines and rather confers unbridled and uncontrolled powers on the State Government and therefore, the said provision being unconstitutional should be struck down.
9. Section 31 of the Beedi Workers Act, 1966 reads as under :-
'31. (1) No employer shall dispense with the services of an employee who has been employed for a period of six months or more, except for a reasonable cause, and without giving such employee at least one month's notice or wages in lieu of such notice :
Provided that such notice shall not be necessary if the services of such employee are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an inquiry held by the employer for the purpose.
(2)(a) The employee discharged, dismissed or retrenched may appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his service or on the ground that he had not been guilty of misconduct as held by the employer or on the ground that such punishment of discharge or dismissal was severe.
(b) The appellate authority may, after giving notice in the prescribed manner to the employer and the employee, dismiss the appeal or direct the reinstatement of the employee with or without wages for the period during which he was kept out of employment or direct payment of compensation without reinstatement or grant such other relief as it deems fit in the circumstances of the case.
2(A) The appellate authority shall have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely;
(a) enforcing the attendance of any person and examining him on oath; and
(b) compelling the production of documents and material objects'.
(3) The decision of the appellate authority shall be final and binding on both the parties and be given effect to within such time as may be specified in the order of the appellate authority'.
10. The words 'employee' and 'employer' are defined under Section 2(f) and 2(g) of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 which read as under :-
'2(f) 'employee' means a person employed directly or through any agency, whether for wages or not, in any establishment or godown to do any work, skilled, unskilled, manual or clerical, and includes -
(i) any labour who is given raw materials by an employer or contractor for being made into beedi or cigar or both at home (hereinafter referred to in this Act as 'home worker'), and,
(ii) any person not employed by any employer or a contractor but working with the permission of, or under agreement with the employer or contractor or both'.
'(g) 'employer' means -
(a) in relation to contract labour, the principal employer, and
(b) in relation to other labour, the person who has the ultimate control over the affairs of any establishment or who has, by reason of his advancing money, supplying goods or otherwise, a substantial interest in the control of the affairs of any establishment and includes any other persons to whom the affairs of the establishment are entrusted, whether such other person is called the managing agent, manager, superintendent or by any other name'.
11. Scheme of Section 31 of the aforesaid Act is that an employee who has been in employment of the employer for a period of six months or more, his services should not be dispensed with except for a reasonable cause and without giving such employee one month's notice or wages in lieu of such notice. However, such notice would not be required if the services of such employee are dispensed with on the charge of misconduct and such charge of misconduct has been enquired into by holding enquiry and there was satisfactory evidence recorded during the course of enquiry proving the charge of misconduct. Section 31(2)(a) provides that such employee whose services have been discharged, dismissed or retrenched, may challenge such order of dismissal, discharge or retrenchment by filing an appeal within the prescribed time and before authority where such appeal lay. The order of discharge, dismissal or retrenchment may be challenged by the employer either on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held in the enquiry by the employer or that punishment of discharge or dismissal was disproportionate or excessive or severe looking to the facts and circumstances of the case. The Appellate Authority under clause (b) of sub-section (2) of Section 31 is required to follow the principles of natural justice and hear and decide the appeal after giving notice to the employer and employee. While hearing the appeal under sub-section (2) of Section 31, the Appellate Authority enjoys the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 when trying a suit in respect of enforcing the attendance of any person and examining him on oath and compelling the production of documents and material objects. After giving the notice to employer and employee of appeal, the Appellate Authority may dismiss the appeal or direct reinstatement of the employee with or without the wages of the period during which such employee was out of employment or direct payment of compensation without reinstatement or grant any such relief which is just and proper and which the Appellate Authority deems fit in the circumstances of the case. The decision of the Appellate Authority is final and binding on the employer and employee and is required to be given effect to within the time prescribed by the Appellate Authority under Sub-section (3) of Section 31 of the Beedi Workers Act, 1966.
12. For carrying out the purposes of the Act, power to make rules is provided in Section 44 of the aforesaid Act and Section 44, as far as relevant, reads as under :-
'44(1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :-
(a) ............. to (m) ..........
(n) the authority to which and the time within which an appeal may be filed by a dismissed, discharged or retrenched employee;
(o) ............ to (x) ..........'
(3) All rules made under this Act shall be published in the Official Gazette and shall be subject to the condition of previous publication; and the dates to be specified under Clause (3) of Section 23 of the General Clauses Act, 1897, shall not be less than three months from the date on which draft of the proposed rules was published.
(4) ...........'
13. It is, thus, clear that the State Government has been empowered to specify the authority to whom and the time within which an appeal may be filed under Section 31(2)(a) of the Beedi Workers Act by an employee who is aggrieved by the order of dismissal, discharge or reinstatement. In exercise of the powers conferred by sub-section (1) and Clauses (a) to (x) of sub-section (2) of Section 44 and all other powers vested in the State Government in that behalf, the Maharashtra Beedi and Cigars Workers (Conditions of Employment) Rules, 1968 (for short, the 'Beedi Workers Rules, 1968') were made. At the time of making of the said rules, Rule 32 which provided for forum and limitation of appeal under Section 31 of the aforesaid Act relating to discharge, dismissal and retrenchment of an employee read as under :-
'32. Appeals under Section 31(1). The appellate authority for the purposes of sub-section (2) of Section 31 shall be the person for the time being presiding over the Labour Courts constituted under the Industrial Disputes Act (hereinafter referred to as the 'Presiding Authority'. He shall have jurisdiction to hear appeals under this rule in respect of industrial premises to areas for which he has jurisdiction under the Industrial Disputes Act, 1947. .....'
(2) An employee who is discharged, dismissed or retrenched may prefer an appeal under sub-section (2) of Section 31, to the appellate authority specified under sub-rule (1) within a period of thirty days from the date of communication of the order of such discharge, dismissal or retrenchment :
Provided that an appeal may be admitted after the said period of thirty days, if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within the said period.
(3) The notice to be given by the appellate authority under Clause (b) of Sub-section (2) of Section 31 shall -
(a) in the case of a notice to an employer be in Form VIII; and
(b) in the case of a notice to an employee, be in Form IX;
and every such notice shall be sent to the party concerned by registered post acknowledgement due'.
Rule 33 of the Beedi Workers Rules, 1966 initially read as under :-
'Procedure to be followed by Labour Courts in deciding appeals. The Presiding Authority in deciding appeals under Sub-section (2) of Section 31 of the Act may follow the procedure of judicial inquiry and cover the spot inspection, examination of documents, witnesses and other evidences produced by the parties. For this purpose, the Presiding Authority shall have the same powers as are vested in the Labour Court under the Industrial Disputes Act, 1947 is so far as they are applicable in deciding such appeals'.
14. These rules were amended by the Maharashtra Beedi and Cigar Workers (Conditions of Employment) Amendment Rules 1977 and accordingly rules 32 and 33 were amended in the following manner :-
'32(A). Subject to the provision of sub-rule (2), the appellate authority for the purposes of sub-section (2) of Section 31 shall be the Assistant Commissioner of Labour; and he shall have jurisdiction to hear appeals (including appeals pending disposal on the date of the coming into force of the Maharashtra Beedi and Cigar Workers' (Conditions and Employment) Amendment Rules, 1977 in such areas as the State Government, may by notification in the Official Gazette, specify in this behalf.
(1-A) Notwithstanding anything contained in sub-rule (1), the appeal which were partly heard by the authorities which were competent to hear them immediately before the coming into force of the Maharashtra Beedi and Cigar Workers' (Conditions of Employment) (Amendment) Rules, 1977 shall be disposed of by those authorities as if the said rules had not been made'.
'33. Procedure to be followed by appellate authority Courts in deciding appeals - The appellate authority in deciding appeals under sub-section (2) of Section 31 of the Act may follow the procedure of judicial inquiry and cover the spot inspection, examination of documents, witnesses and other evidences produced by the parties. For this purpose, the appellate authority shall have the same powers as are vested in the appellate authority under the Industrial Disputes Act, 1947 in so far as they are applicable in deciding such appeals'.
15. The question is, on the face of the provisions contained in Section 31, particularly Sub-section (2) (a) thereof, can it be said that the provisions contained therein are unconstitutional because of the lack of guidelines about the appointment of the authority for hearing appeals. Plain answer would be in the negative. Merely because the authority to whom an appeal under Section 31(2)(a) challenging the dismissal, discharge or retrenchment by an employee has not been specified, it cannot be said that the said provision conferred unbridled and uncontrolled power for appointment of such authority hearing appeals. True it is that by not specifying the authority who would hear the appeal under Section 31(2)(a) of the Beedi Workers Act, discretion has been given, but that discretion under Section 44 of the said Act has been given to the State Government which provides that the State Government may, by notification in the Official Gazette, make rules for carrying out purposes of this Act and Clause (n) of Sub-section (2) thereof empowers the State Government to make rule providing for the authority to whom and the time within which an appeal may be filed by a dismissed, discharge or retrenched employee. Discretion, therefore, has been given to the State Government and that by itself is a sufficient check and it cannot be said that unbridled and uncontrolled power has been conferred without any guidelines. The discretionary power conferred on the State Government to specify the authority for hearing the appeals under Section 31(2)(a) filed by the dismissed, retrenched or discharged employee by itself does not invalidate Section 31(2)(a) of the Beedi Workers Act, 1966 not can it be said than it suffers from vice of unbridled, uncontrolled and unguided power. The fact that the discretion is exercised by the State Government and it is only the State Government who is invested with power to exercise such discretion under Section 44, I am of the clear view that the said provisions contained in Section 31(2)(a) is constitutional and cannot be invalidated on the ground of contravention of Article 14 of the Constitution of India.
16. I am fortified in my view by the judgment of the Apex Court in Workmen of Meenakshi Mills Ltd. & Ors. v. Meenakshi Mills Ltd. & Anr. 1992 I CLR 1010. In that case while challenging the constitutionality of Section 25(N) of the Industrial Disputes Act, 1947, one of the contentions before the Apex Court was that Section 25-N of the said Act does not give any indication about the status and qualifications of the Officer who would be entrusted with the power to grant or refuse permission for retrenchment of workman. The contention was that without specifying the authority which may exercise the power under Sub-section (2), discretion has been conferred on the appropriate Government and the said discretion being unfettered and uncontrolled, Section 25-N of the Industrial Dispute Act, 1947. Repelling the said argument, the Supreme Court observed thus :-
'40. As regards the second part of the contention relating to the discretion conferred on the appropriate Government to specify the authority which may exercise the power under Sub-section (2), it may be stated that the said discretion given to the Government itself and not to a subordinate officer. In Virendra v. State of Punjab this Court was dealing with Section 2(1) (a) of the Punjab Special Powers (Press) Act, 1956, which uses the expression, 'the State Government or any authority so specified in this behalf'. The validity of the said provision was assailed on the ground that it gave unfettered and uncontrolled discretion to the State Government or to the Officer authorised by it and reliance was placed on the earlier decision of this Court in Dwarka Prasad Laxmi Narain v. State of U.P. Rejecting the said contention this Court held : 'In the first place, the discretion is given in the first instance to the State Government itself and not to a very subordinate officer like the licensing officer as was done in Dwarka Prasad case. It is true that the State Government may delegate the power to any Officer or person but the fact that the power of delegation is to be exercised by the State Government itself is some safeguard against the abuse of this power of delegation'.
'41. It has, however, been submitted that in Virendra case this Court struck down Section 3(1) of the said Act which also used the same expression, viz., 'the State Government or any authority authorised by it in this behalf'. But on a perusal of the judgment, we find that Section 3(1) was not struck down on the ground that the power could be delegated by the State Government to any authority. It was held to be bad on the ground that there was no time limit for operation of the order made under Section 3(1) and no provision was made for any representation being made to the State Government and in this regard the provisions contained in Section 3 were contrasted with those contained in Section 2(1) (a) wherein a time-limit of two months had been prescribed for Government had also been conferred. Keeping in view the fact that the power to specify the authority which can exercise the power conferred under Sub-section (2) of Section 25N has been conferred on the appropriate Government, we are unable to hold that the delegation of the power to the appropriate Government to specify the authority renders the provisions of Section 25N as arbitrary or unreasonable. The first contention is, therefore, rejected'.
17. In Section 31(2)(a) of the Beedi Workers Act, 1966, it has been provided that the appeal against the order of dismissal, discharge and retrenchment may be filed by an employee within time and such authority as may be prescribed and Section 44 of the said Act empowers the State Government to make rules for carrying out purposes of the Act and clause (n) of sub-section (2) of Section 44 empowers the State Government to make rules providing for the authority to whom and the time within which the appeal may be filed by the dismissed, discharged or retrenched employee and, therefore, the power having been given to the State Government itself under the Act, it cannot be said that the said power suffers from the vice of uncontrolled and unfettered discretion given to the State Government. Looking to the policy, scheme, letter and the spirit of Section 31, the State Government is to appoint the authority for hearing the appeals under Section 31 to decide the nature of controversy relating to dismissal, discharge or retrenchment of an employee on the grounds mentioned therein by following the procedure as contemplated under Section 31 itself and rules framed thereunder and, therefore, the provision of Section 31(2)(a) even without specifying the authority before whom the appeal would lie under the said section is constitutionally valid and is not violative of Article 14 of the Constitution of India, as aforesaid. Section 31(2)(a) of the Beedi Workers Act, 1966 is, thus neither arbitrary nor unreasonable.
18. Whether the rule conferring jurisdiction to hear appeals under Sub-section (2) (a) of Section 31 to the Assistant Commissioner of Labour by appointing them as Appellate Authority is constitutionally valid or not, shall be examined later on, but even otherwise measure or abuse of discretionary power conferred under Section 31(2)(a) read with Section 44 of the Beedi Workers Act, 1966 may be abused or misused, is not and would not be a ground for invalidating Section 31(2)(a) and, therefore, the submissions made by the Mr. Qazi, the learned counsel for the petitioner-employer that the grounds on which he was assailing validity of the rule appointing Assistant Commissioners of Labour as appellate authority to hear appeals under Section 31(2)(a) would itself invalidate Section 31(2)(a) is misplaced and misconceived and is held to be void of any merits. As observed above, the entire Beedi Workers Act, 1966 has been held to be constitutionally valid including Section 31 by the Apex Court in Mangalore Ganesh Beedi Works case (cited supra), though specific challenge to sub-section (2) (a) of Section 31 was not made and challenge was confined to Section 31 to the extent it provided one month's notice in lieu of notice of dismissal. Once he enactment has been held to be constitutional by the Apex Court, merely because certain aspects were not specifically raised or certain provisions were not specifically challenged, those provisions cannot be allowed to be reopened by raising different pleas at different times. The constitutional validity of the entire Beedi Workers Act, 1966 having been upheld by the Apex Court, the constitutionality of Section 31(2)(a) would also be presumed to have been upheld by the Apex Court even if the arguments advanced on behalf of the present petitioner-employer relating to Section 31(2)(a) were not raised before the Apex Court in the manner the same are being raised in these writ petitions. In this view of the matter, there is no merit in the contention of the learned counsel for petitioner-employer that Section 31(2)(a) of the Beedi Workers Act, 1966 is unconstitutional and violative of Article 14 of the Constitution of India. Besides that, I have already held that the said provision contained in Section 31(2)(a) even otherwise does not suffer from any vice of unfettered and uncontrolled discretion conferred on the State Government and is constitutionally valid under Article 14 of the Constitution of India.
19. Challenging the constitutional validity of Rule 32 of the Beedi Workers Rules as amended by the Maharashtra Beedi and Cigar Workers (Conditions of Employment) Rules, 1977 conferring the jurisdiction to hear appeals under Section 31(2)(a) of the Beedi Workers Act to the Assistant Commissioners of Labour, Mr. Qazi, the learned counsel for the petitioner-employer contended that it is violative of Article 14, 19(1)(g) and 50 of the Constitution of India and Section 31(2)(a) of the Beedi Workers Act, 1966. It has been contended by the learned counsel that initially Rule 32(1) of the Beedi Workers Rule, 1968 conferred appellate powers under Section 31(2)(a) of the Act upon the Labour Courts constituted under the Industrial Disputes Act, 1947, but this rule has been substituted by the Maharashtra Beedi and Cigar Workers (Conditions of Employment) Amendment Rules, 1977 effective from 1.1.1977 whereby the jurisdiction to hear appeals under Section 31(2)(a) of the Beedi Workers Act has been conferred upon the Assistant Commissioners of Labour and since the procedure to be followed by the Appellate authority is the procedure of judicial enquiry and the appellate authority virtually discharges the powers of the Courts in adjudicating the civil dispute of dismissal, discharge and retrenchment and the said judicial powers having been conferred on non-judicial person or authorities like the Assistant Commissioner of Labour, is unconstitutional and unreasonable. According to the learned counsel, the Assistant Commissioner of Labour acts as an Administrative Officer of Executive Authority and discharges various administrative or executive functions under various Labour Laws, conferment of juridical powers under Section 31(2)(a) to such authority having no judicial training of experience, is also unreasonable and unsustainable. Mr. Qazi contended that the appellate Authority contemplated under Section 31(2)(a) of the Beedi Workers Act is a judicial authority and such power having been given to the Assistant Labour Commissioners who are only Administrative Officers in the Labour Department discharging administrative and executive functions by the Amendment rules of 1977, is violative of Section 31(2)(a) of the Beedi Workers Act besides being violative of Articles 14 and 19(1)(g) of the Constitution of India. The appointment of Assistant Commissioners of Labour under the Amendment Rules of 1977 as an appellate authority under Section 31(2)(a), contended Mr. Qazi, is arbitrary and imposing unreasonable restrictions on the right of the petitioners to carry on their business. The learned counsel for the petitioner-employer referred to various provisions under the Minimum Wages, Payment of Wages Act, Payment of Gratuity Act, Payment of Bonus Act, the Bombay Shops and Establishments Act etc., and submitted that under the said Acts, the Government Labour Officers are also appointed as Inspectors, Inspectors under the said Acts who are Government Labour Officers also have multifarious duties to performs under various Labour Laws. They are required to negotiate and settle industrial matters between employees and employees and they are tested with the powers to prosecute employers under the different Labour Laws. These Inspectors are mostly subordinate to Assistant Commissioners of Labour in the District and, therefore, develop bias with the employers. Mr. Qazi contended that similarly Assistant Commissioners of Labour are also required to performs different functions under Labour Laws including that of Conciliation Officer into he industrial disputes and therefore, they often come in contact with the employers in labour matters and from their opinions in respect of individual employers and develop their likings and disliking prejudices, and bias against various employers and these very Assistant Commissioners of Labour having been conferred with power to hear the appeals under Section 31(2)(a) challenging dismissal, discharge and retrenchment of the employees, such Assistant Commissioners of Labour develop bias and the employers cannot expect justice from them. In this background also. Mr. Qazi contended that Amending Rule 32 of the Beedi Workers Rules and conferring jurisdiction on the Assistant Commissioners of Labour to hear appeal under Section 32(a) is unreasonable. The learned counsel, therefore, contended that the notification dated 1.1.1977 amending Rule 32 of the Beedi Workers Rules, 1968 by the Maharashtra Beedies and Cigar Workers (Conditions of Employment) Rules, 1977 be invalidated and declared unconstitutional. In this connection, Mr. Qazi relied on Chandramohan v. State of U.P. & Ors. (AIR 1966 SC 1987); Statesman (P) Ltd. v. H. R. Deb & Ors. Harinagar Sugar Mills v. Shyam Sunder & Ors. Krishna Chandra Sharma v. Sindh Hyderabad National Collegiate Board, S. P. Sampatkumar v. Union of India & Ors. (AIR 1987 SC 386); J. P. Patel & Anr. v. ESIC (1987 MH. L. J. 280); Rajni Parekh College & Anr. v. Mahendra Ambalal Shah, (1986) I CLR 352; S. K. Sarkar v. Vinay Chandra Misra : 1981CriLJ283 ; Mohini Jain v. State of Karnataka & Ors. (1992) III SC 666; Kartarisingh v. State of Punjab (1994) III SC 569; All India Judges Association v. Union of India & Ors. 1993 II CLR 770; Advocates-on-Record Association & Ors. v. Union of India & Ors. : AIR1994SC268 and Unnikrishnan & Ors. v. State of A.P. & Ors. : (1993)4SCC111 .
20. On the other hand Mr. Chawda, the Assistant Government Pleader appearing on behalf of the State submitted that the Beedi Workers Act is a special enactment enacted to regulate the conditions of service of the Beedi workers and for matters connected therewith. The said Act has been enacted for the welfare of the workers and to protect their rights. The scheme of the Act relates to various provisions regarding health and welfare; conditions of employment, leave with wages etc., and Section 31 of the Act is a wholesome provision to safeguard and protect dispensing with the services of an employee arbitrarily and unreasonably by the employer. Mr. Chawda contended that initially under that initially under the Rules, the Labour Courts were conferred jurisdiction of the prescribed authority under Section 31(2)(a) to hear and decide the appeals which were filed by the dismissed, discharged or retrenched employee. However, it was found that the Labour Courts had to deal with large number of industrial disputes, appeals under Section 31(2)(a) filed by the dismissed, discharge and retrenched employees were not quickly and speedily disposed of and the matters remained pending for quite some time causing tremendous hardship to the beedi workers. It was also experienced by the State Government that the Labour Courts and not been constituted for every district and a poor beedi workers to get redressal of his illegal discharge, dismissal or Retrenchment, was required to travel beyond the district to file appeal under Section 31(2)(a) and that also added to the miseries of the beedi workers. Mr. Chawda, thus, contended that taking into consideration the sufferings, inconvenience, hard ship and series of dismissed, retrenched and discharged beedi workers, the State Government thought it fit that jurisdiction of hearing appeals under Section 31(2)(a) should be conferred on such officer who is well aware of the labour problems and can quickly and speedily dispose of the appeals under Section 31(2)(a). Consequently, Rule 32 of the existing Beedi Workers Rules, 1962 was amended by making the Maharashtra Beedi and Cigar (Conditions of Employment) Rules, 1977 and the jurisdiction to hear the appeals under Section 31(2) was conferred on the Assistant Commissioners of Labour. The learned A.G.P. submitted that the Assistant Commissioner of Labour is a gazetted post in the Labour Department and they are appointed in accordance with the Maharashtra Gazetted Posts in the Labour Department (Recruitment) Rules, 1981. The Assistant Commissioners of Labour under the said rule are appointed either by promotion on the basis of seniority - cum-merit or amongst the persons appointed to the post of Government Labour Officer, Assistant Registrar of Unions under the Bombay Industrial Relations Act, 1946. Special Officer (O & M) or Statistical Officer under the Commissioner having a minimum service of five years in any of the above posts or by nomination from amongst candidates are not more than 30 years of age unless already in the Government service and possess a post-graduate degree or two years post-graduate diploma in Labour Welfare, Industrial Relations and Personnel Management declared by Government to be equivalent thereto or they possess a degree in IInd Class in Arts, Science, Commence, Economics, Law, Agriculture, Statistics or Mathematics with Statistics as a subject or in Social Science of Social Work recognised for the purpose of Maharashtra Welfare Officers (Duties Qualifications and Conditions of Service) Rules, 1966 and possess practical experience as a Labour Officer or Welfare Officer in a responsible position in an industrial undertaking or commercial concern, local authority or in a Government Department Corporation or Board established by Government, for a period of not less than three years, gained after acquiring qualifications mentioned in Sub-clause (ii) or (iii) of Rule 4 of the Recruitment Rules of 1981. Mr. Chawda submitted that the Assistant Commissioners of Labour having experience of industrial relation and looking to the dispute which is required to be settled in the appeal under Section 31(2)(a), they are competent enough to decide the same and it cannot be said that Rule 32 of the Beedi Workers rules as amended by the notification published on 1.11.1977 making the Maharashtra Beedis and Cigar (Conditions of Employment) Amendment Rules, 1977, is unreasonable or violative of Articles 14, 19(1)(g) and 50 of the Constitution of India or Section 31(2)(a) of the Beedi Workers Act, 1966.
21. 'Employee' and 'Employer' are both defined in the Beedi Workers Act, 1966. Under Section 2(f), 'employee means a person employed directly or through any agency, whether for wages or not, in any establishment or godown to do any work, skilled unskilled manual or clerical including any labour who is given raw materials by an employer or a contractor for being made into beedi or Cigar or both at Home (known as home worker) and any person not employed by an employer or a contractor but working with the permission of or under agreement with the employer or contractor or both. According to Section 2(g) employer means in relation to contact labour, the principal employer and in relation to other labour, the person who has the ultimate control over the affairs of any establishment or who has by reason of his advancing money, supplying goods or otherwise a substantial interest in the control of the affairs of any establishment and includes an other person to whom the affairs of the establishment are entrusted, whether such other person is called the managing agent, manager, superintendent or any other name. An employee who has work with the employer for a period of six months or more his services cannot be dispensed with by an employer except for a reasonable cause and without giving such employee at least one month's notice or wages in lieu of such notice. However, if an employee is charged of misconduct and enquiry is held against him of the misconduct and in the said enquiries on the basis of the satisfactory evidence, the misconduct is proved, the services of the employee would be dispensed with without giving any notice. The employee who has been dismissed discharged or retrenched by the employer can challenge such order of discharge dismissal or retrenchment by filing an appeal before the authority appointed for the purpose. Such order of dismissal, discharge or retrenchment may be challenged by the employee on three grounds viz., (i) that there was no reasonable cause for dispensing with his services; (ii) he had not been guilt of the misconduct as held by the employer or (iii) that such punishment of discharge, dismissal or retrenchment was disproportionate, excessive or severe. On such appeal having been field by the employee, the appellate authority is required to decide appeal after giving notice to the employer an employee as prescribed. Appeal is required to be file by the employee if aggrieved by the order of dismissal, discharge or retrenchment within a period of 30 days from the date of communication of such order of dismissal discharge or retrenchment provided such appeal may be admitted after a period of 30 days if the employee satisfies the appellate authority that he has sufficient cause of not preferring the appeal within such period. The appellate authority deciding appeals may follow the procedure of judicial enquiry and cover the spot inspection, examination of documents, witnesses and other evidence produced by the parties and for the said purpose, the appellate authority has the same powers as are vested in the appellate authority under the Industrial Disputes Act, 1947 in so far as they are applicable in deciding such appeals. The Appellate Authority after hearing the employer and the employee, may dismiss the appeal or direct reinstatement of employee with or without back wages for the period during which he was kept out of employment or direct payment of compensation without reinstatement or grant such other relief as it deems fit in the circumstances of the case and while hearing the appeal, the Appellate Authority has the same powers as are vested in the Civil Court under the Code of Civil Procedure and trying a suit in respect of enforcing attendance of any person and examining him on oath and compelling production of documents and material objects. The decision of the Appellate Authority is final and binding on the parties and is required to be given effect to within such time as maybe specified in the order of the Appellate Authority. It is therefore, clear that the subject-matter or dispute in the appeal challenging the order of discharge, dismissal or retrenchment is confined to the small controversy in as much as whether the employer had reasonable cause for dispensing with the service of the employee or that the employee had not been guilty of the misconduct as held by the employer or that the punishment of discharge, dismissal or retrenchment was disproportionate or excessive or severe. No doubt, the Appellate Authority is required to hear the appeals under Section 31(2)(a) in a judicial manner and after following the principles of natural justices, but at the same time function of hearing of the appeals under Section 31(2)(a) by the Appellate Authority cannot be said to be a function of a Court as is understood in ordinary sense. The Appellate Authority in hearing the appeals under Section 31(2) of the Beedi Workers Act, though may decide the appeals after following the procedure of judicial enquiry and cover the spot inspection, examination of documents witnesses and other evidence as produced by the parties and for the said purpose enjoys the same powers as are vested in the Appellate Authority under the Industrial Disputes Act so far as they are applicable in deciding such appeals and such Appellate Authority also enjoys the power of the Civil Court under the Code of Civil Procedure when trying a suit, of enforcing attendance of any person and examine him on oath and compelling him to produce documents and material objects, yet all such powers vested in the Appellate Authority only make the Appellate Authority Tribunal meant to decide the appeals arising out of the dismissal, discharge or retrenchment of the employee by employers within the four corners of Section 32(2) of the Beedi Workers Act, 1966. It is apparent and obvious that the proceedings before the Appellate Authority under Section 31(2) are akin to the judicial proceedings and a finality attached to it under Sub-section (3) of Section 31 leaves no doubt that the proceedings before the Appellate Authority are judicial in nature but the said proceedings do not make the Appellate Authority, the Court in its ordinary sense. However, the question which has been raised by the learned consul for the petitioners and needs scrutiny is whether discharge of such functions by the appellate authority as is required under Section 31(2)(a) can only be made by the persons who are judicial officers and none other person and, whether the appointment of Assistant Commissioner of Labour as an appellate authority is unreasonable or violative of Articles 14, 19(1)(g) and 50 of the Constitution of India or Section 31(2) of the Beedi Workers Act, 1966. It is true the initially, under Rule 32 of the Beedi Workers Rules, the jurisdiction to hear appeals under Section 31(2) was conferred on the Labour Court, but that did not mean that the said rule could not have been conferred on any other authority, if otherwise not unreasonable. Assistant Commissioner of Labour are gazetted posts in the Labour Department and they are recruited under the Maharashtra Gazetted Posts in the Labour Department (Recruitment) Rules, 1981. Under rule 2(d) of the said Recruitment Rules, 'Gazetted Post means the post of Assistant Commissioner of Labour or Government Labour Officer in the Labour Department Rule 3 of the said Recruitment Rules of 1981 provides for recruitment to the Gazetted posts in the Labour Department in accordance with the rules mentioned in the said Rules. Rule 4 which provides for appointment to the post of Assistant Commissioner of Labour in the Labour Department reads as under :-
'4. Assistant Commissioner of Labour - Appointment to the post of Assistant Commissioner of Labour in the Labour Department shall be made either - (a) by promotion of a suitable person on the basis of seniority-cum-merit from amongst the persons appointed to the post of Government Labour Officers, Assistant Registrar of Unions under the Bombay Industrial Relations Act, 1946 (Bom. XI of 1947), Special Officer (O & M) or Statistical Officer under the Commissioner having a minimum service of five years in any of the above posts; or
(b) by nomination from amongst candidates, who,
(i) unless already in the service of Government are not more than 30 years of age; and
(ii) possess a post-graduate degree or a two years post-graduate diploma in Labour Welfare, Industrial Relations and Personnel Management declared by Government to be equivalent thereto : or
(iii) possess a degree at least in second class in Arts, Science Commerce, Economics Law, Agriculture, Statistics or Mathematics with Statistics as a subject or in Social Science or Social Work recognised for the purpose of Maharashtra Welfare Officers (Duties Qualifications and Conditions of Service) Rules, 1966; and
(iv) possess practical experience as a Labour Officer or Welfare Officer in a responsible position in an industrial undertaking or commercial concern, local authority or in a Government Department Corporation or Board established by Government for a period of not less than three years, gained after acquiring qualifications mentioned in sub-clause (ii) or (iii) above; and
(v) have adequate knowledge of Marathi'.
22. The eligibility of Assistant Commissioner of Labour as provide din the aforesaid rules would make it clear that the Assistant Commissioners of Labour are well versed with the labour problems labour welfare industrial relations-cum-personnel management and either possess a post-graduate degree or two years post-graduate diploma in Labour Welfare, Industrial Relations and Personnel Management declared by the Government to be equivalent thereto and besides having a decree in 2nd division in Arts Science, Commerce Economics, Law, Agriculture, Statistics or Mathematics with Statistics as a subject or in Social Science or Social Work, the eligibility demands that the candidate to the said post should possess practical experience as a Labour Officer or Welfare Officer in a responsible position in an industrial undertaking or commercial concern, local authority or in a Government Department Corporation or Board established by the Government for a period of not less than three years or they have been promoted on the basis of seniority-cum-merit from amongst the persons appointed to the post of Government Labour Officer Assistant Registrar of Unions under the Bombay Industrial Relations Act, 1946, Special Officer (O & M) or Statistical Officer under the Commissioner, having a minimum service of five years in any of the above posts. The nature of controversy involved in the appeals arising out of the dismissal discharge or retrenchment of the employee as discussed above, can therefore, be conveniently decided and adjudicated upon by such Assistant Commissioners of Labour and there is not merit in the contention of the learned counsel for the petitioner-employer that such Assistant Commissioners of Labour being not judicial officers, are not competent to adjudicate and decide the apples. The provision contained in sub-section (3) of Section 31 provides that such appeal will be decided after giving notice to the employer and employee and while hearing the appeal, the Appellate Authority may exercise the power required under sub-section (2-A) of Section 31 and in sub-rule (3) of rule 33. The Assistant Commissioner of Labour is an officer of the Labour Department, well acquainted with the labour welfare and as an experienced person with working knowledge in the labour field, can know the difficulty in deciding such appeals as are contemplated under Section 31(2) of the Beedi Workers Act, 1966. Rather, with the experience and knowledge of the field, these Assistant Commissioner of Labour are in position to decide the appeals expeditiously and quickly and it cannot be said that by conferring jurisdiction of hearing the appeals to such authorities by Amendment Rules of 1977, jurisdiction has been conferred on the authorities who are not competent to discharge judicial functions which are required to be discharged while hearing the appeals under Section 31(2). The nature of dispute required to be decided and adjudicated upon by the Appellate Authority under Section 31(2) is simple and not complex and with the knowledge, background and the experience and working in the labour field, on evaluation of simple fact, such disputes can be properly, effectively and expeditiously as also conveniently decided by the Assistant Commissioner of Labour. The beneficial legislation of the Beedi Workers Act enacted for the welfare and benefits of the beedi workers including their conditions of employment, object of the Act, the limited sphere within which the Appellate Authority is required to adjudicate the dispute, conferment of jurisdiction of hearing the appeals on the Assistant Commissioner of Labour, is neither arbitrary nor unreasonable and therefore, there is no merit in the contention of the learned counsel for the petitioner-employer that for adjudication of such disputes, the Appellate Authority should be manned by the officers of judicial service or that the appointment of such officers can only be had in consultation with the Public Service Commission or the High Court.
23. In Harinagar Sugar Mills' case (supra), Apex Court while considering as to whether the appeals decided by the Central Government under Section 111(3) of the Companies Act, 1956, was the Court or not, held as under :-
'30. The orders which the Central Government passes, certainly fall within the words 'determination' and 'order'. The proceeding before the Central Government also falls within the wide words, 'any cause or matter'. The only question is whether the Central Government, when it hears and decides an appeal can be said to be acting as a Court or Tribunal. That the Central Government is not a Court was assumed at the hearing. But to ascertain what falls within the expression 'Court or Tribunal' one has to begin with 'Courts'. The word 'Court' is not defined in the Companies Act, 1956. It is not defined in the Civil Procedure Code. The definition of the Indian Evidence Act is not exhaustive, and is for the purposes of that Act. In the New English Dictionary (Vol. III) pp. 1090, 1091) the meaning given is :
'an assembly of judges or other persons legally appointed and acting as a Tribunal to hear and determine any cause, civil, ecclesiastical, military or naval'. All Tribunals are not Courts, though all Courts are Tribunals. The word 'Courts' issued to designate those Tribunals which are set up in an organised State for the administration of justice. By administration of justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish 'wrongs' whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which is disturbed. Judicial power, according to Griffith, C.J., in Huddart, Parker & Co. Proprietary Ltd. v. Moorhead (1909) 8 CLR 330 (357) means :-
'the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, or whether the rights relate to life, liberty or property. The exercise of this power does not begin until some Tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action'. 31. When rights are infringed or invaded, the aggrieved party can go and commence a queerly before the ordinary Civil Courts. Those Courts which are instrumentalities of Government, are invested with the judicial power of the State, and their authority is derived from the Constitution or some Act of legislature constituting them. Their number is ordinarily fixed and they are ordinarily permanent, and can try any suit or cause within their jurisdiction. Their members may be increased or decreased, but they are almost always permanent and go under the compendious name of 'Courts of Civil Judicature'. There can thus be no doubt that the Central Government does not come within this class.
32. With the growth of civilisation and the problems of modern life, a large number of administrative Tribunals have come into existence. These Tribunals have the authority of law to pronounce upon valuable rights; they act in a judicial manner and even on evidence on oath, but they are not part of the ordinary Courts of Civil Judicatory. They share the exercise of the judicial power of the State, but they are brought into existence to implement some administrative policy of some administrative law. They are very similar to Courts, but are not Courts. When the Constitution speaks of 'Court' in Arts. 136, 227 or 228 or in Arts. 233 to 237 or in the Lists, it contemplates Courts of Civil Judicature, but no Tribunals other than such Courts. This is the reason for using the expressions in Arts. 136 and 227.
By 'Courts' is meant Courts of Civil Judicature and by 'Tribunals', those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State, and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable. Broadly speaking, certain special matters go before Tribunals, and the residue goes before the ordinary Courts of Civil Judicature. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been successfully established. Lord Stamp said that the real distinction is that Courts have 'an air of detachment'. But this is more a matter of age and tradition and is not of the essence. Many Tribunals, in recent years, have acquired themselves so well and with such detachment as to make this test insufficient. Lord Sankey, L.C. in Shell Co. of Australia v. Federal Commissioner of Taxation (1931) A.C. 275 (296) observed :
'The authorities are clear to show that there are Tribunals with many of the trappings of a Court, which, nevertheless, are not Courts in the strict sense of exercising judicial power. In that connection it may be useful to enumerate some negative propositions on this subject :
1. A Tribunal is not necessarily a Court in this strict sense because it gives a final decision.
2. Nor because it hears witnesses on oath.
3. Nor because two or more contending parties appear before it between whom it has to decide.
4. Nor because it gives decisions which affect the rights of subjects.
5. Nor because there is an appeal to a Court.
6. Nor because it is a body to which a matter is referred by another body. See Rex v. Electricity Commrs. (1924) I.K.B. 171'.
24. It would be, thus, seen that the Appellate Authority under Section 31(2) of the Beedi Workers Act has some trappings of a Court, but that is all. The Appellate Authority is not a Court as ordinarily understood and its constitution is not governed by any legislation applicable to the civil Courts. The Appellate Authority has the authority of law to pronounce upon the valuable rights of an employee relating to his discharge, dismissal or retrenchment and acts in a judicial manner, but it is not a Court of civil judicature. The Appellate Authority may be said to be sharing judicial side of the State, but it has been created to determine controversies arising out of dismissal, discharge and retrenchment of a beedi worker, an employee within the meaning of the Beedi Workers Act. When the Constitution of India speaks of Courts in Articles 233 to 237, it refers and relates to the Courts of Civil Judicature, but not the Tribunals other than such Courts. The Appellate Authority who is required to decide the appeals by following the procedure contemplated under clause (b) of sub-section (2) of Section 31, sub-section (2-A) of Section 31 of the Beedi Workers Act or under Rule 33 by following the procedure of judicial inquiry and deciding the matter relating to discharge, dismissal and retrenchment of an employee judicially, would not make it a 'Court'. Such procedure only establishes that the Appellate Authority is following the principles of natural justice and its conduct is free from bias or interest.
25. Though Mr. Qazi, the learned counsel for the petitioner - employer placed strong reliance on State of Maharashtra v. Labour Law Practitioners Association, Krishna Chandra Sharma v. Sindh Hyderabad National Collegiate Board; Chandramohan v. State of U.P., Statesman (P) Ltd. v. H. R. Deb and S. P. Sampatkumar v. Union of India's cases, (cited supra) none of the aforesaid decisions has any application in the facts and circumstances of the present case and the said judgments, therefore, do not help the arguments advanced by the learned counsel for the petitioner-employer. In the State of Maharashtra v. Labour Law Practitioners' Association & Ors. (1987 I CLR 205), the Division Bench, looking to the facts and circumstances to the case available in that case in view of Articles 234 and 236 of the Constitution of India, held that the posts of Labour Court Judges are included in the judicial service and, therefore, have to be made by the State in accordance with the rules after consultation with the Public Service Commission and the State High Court and in this background, the appointments of Assistant Commissioners of Labour as Labour Court Judges were quashed being violative of the aforesaid provisions. The Division Bench further held that the definition of 'District Judge' occurring under Article 236(a) of the Constitution of India includes every conceivable functionary of similar status in what is ordinarily regarded as hierarchy of the Courts, but is still only inclusive of nature. The Division Bench, however, did not hold that any appointment as a Presiding Officer of the Tribunal having some trappings of Court or some attributes of Court even when not required to be manned by the Officers of the judicial service of the State, would come within the sweep of Article 236 of the Constitution of India.
26. In Krishna Chandra Sharma's case (cited supra), the question proceeded upon the consideration of Article 30 and not upon the requirements of Articles 234 and 236 of the Constitution of India. None of these cases can be regarded as authority for the proposition that any Tribunal which has the trappings and attribute of the Court, must necessarily come within the sweep of Articles 234 and 236 of the Constitution of India. The observations made in both the judgments have to be read only in the context in which they appear and for the reasons already stated above by me, the observations in the aforesaid judgments have no application in the facts and circumstances of the present case. Similarly, the judgments of the Apex Court in Chandramohan's case (supra) and Statesman (P) Limited's case (supra) have no application to the present controversy. In Chandramohan's case, it was pointed out before the Apex Court that the expression 'service' in Clause (2) of Article 232 of the Constitution of India means judicial service. The Chapter dealing with subordinate Courts in which the expression 'service' appears, indicates that 'service' mentioned therein is a service pertaining to Courts. Besides this, Article 236(2) defines judicial service to mean service consisting exclusive of persons intended to fill the post of District Judge and other Civil Judicial Posts inferior to the post of District Judge. Applying this definition to Article 233(2), no doubt remains that the service in Article 232(2) can only mean judicial service. Justice Hidayatullah in Hari Nagar Sugar Mills' case (supra) has held in unequivocal terms that when the Constitution speaks of Courts in Articles 233 to 237, it contemplates Courts of civil judicature alone and not Tribunals, other than such Courts. In Statesman (P) Limited's case, the Supreme Court has made it clear that the scheme of Chapter V and Part 6 of the Constitution of India has its own effect on the meaning of the expression 'judicial officer' and 'judicial service' and in any case, use of the same expression in any other enactment not in pari materia can have any bearing on the Industrial Disputes Act and vice-versa. S. P. Sampath Kumar's case (supra) is entirely different which related to creation of Administrative Tribunals by supplanting the powers of the High Court under Article 226 of the Constitution of India and in that context the Apex Court held that the post of Secretary to Government who has no judicial experience not only failed to inspire confidence in public mind, but would also render Administrative Tribunal much less effective than the High Court. All these precedents, therefore, do not help the learned counsel for the petitioner-employer to bring home the point that conferment of jurisdiction of hearing the appeals under Section 31(2) of the Beedi Workers Act is violative of Articles 14, 40 or Articles 234 and 236 of the Constitution of India or that the appointment of Assistant Commissioner of Labour without consultation with the High Court or the Public Service Commission to hear such appeals, is illegal or unconstitutional. The decisions cited by Mr. Qazi in J. C. Patel, Chandrakant, S. K. Sarkar and Principal, Rajni Parekh College's case (supra) have also no application to the present case. In Rajni Parekh College's case, the Service Tribunal has been held to be a Court for the purposes of Contempt of Courts Act, 1971 and similarly, in S. K. Sarkar's case and Chandrakant's case, the Board of Revenue and School Tribunal have been held to be the Courts for the purpose of the Contempt of Courts Act. In J. C. Patel's case, Insurance Court has been held to be the Court within the meaning of the Limitation Act. Obviously, no such controversy is involved in the present case and, therefore, these decisions have no application to the present case.
27. Mr. Qazi, the learned Counsel for the petitioner-employer referred to various provisions of different Labour Laws to show that the Government Labour Officers are appointed as Inspectors under those Acts and those Government Labour Officers who are Inspectors and even authorised to prosecute the employers, are subordinate to the Assistant Commissioner of Labour and, therefore, such Assistant Commissioners of Labour are always biased with the employers and their appointment as Appellate Authority to decide the appeals of the employees relating to their discharge, dismissal or retrenchment is unreasonable and justice cannot be expected from such Officers and the provision of the Amendment Rules of 1977 conferring jurisdiction of hearing appeals under Section 31(2) upon the Assistant Commissioners of Labour is also bad in law. In this connection, Mr. Qazi referred to Section 6 of the Beedi Workers Act which provides for appointment of Inspectors under the said section. Section 7 deals with the powers of the Inspectors and Section 36 provides for the cognizance of the offences committed by the employer upon the complaint made in writing by the Chief Inspector or Inspector. Similarly, Mr. Qazi referred to the provisions contained in the Minimum Wages Act, Payment of Maternity Benefit Act, Bombay Shops and Establishments Act, 1948 to demonstrate that in all these Acts, the Government Labour Officers are appointed as Inspectors and on the basis of their complaint in writing, cognisance of the offences against the employer may be taken. Mr. Qazi also submitted that the Assistant Commissioners of Labour also perform different functions under the Labour Laws including that of Conciliation Officer in the Industrial Disputes and, therefore, they often come in contact with the employers in the labour matters and form opinion in respect of individual employer and, therefore, employers are put to great disadvantage and cannot expect justice since such Assistant Commissioners of Labour have always prejudices and bias with the employers. Merely because the Government Labour Officers who are subordinate to the Assistant Commissioners of Labour and who have to discharge functions of Inspectors under the various Labour beneficial legislations, no such general bias of the Assistant Commissioners of Labour can be assumed or inferred. How can the Government Labour Officer who discharges the functions of Inspectors under the various Labour Laws, can influence the decision which the Assistant Commissioner of Labour has to make in the appeals under Section 31(2) of the Beedi Workers Act, simply because the Assistant Commissioner of Labour is superior to such Government Labour Officers who are Inspectors under various Labour Laws Again, merely because the Assistant Commissioner of Labour has to perform different functions under various Labour Laws including that of conciliation officer in industrial disputes, no general inference of bias and prejudice can be inferred, and, therefore, no ground for invalidating the rule conferring jurisdiction of hearing the appeals upon the Assistant Commissioner of Labour under Section 31(2) can be said to have been made out. In individual and specific case, if there is any prejudice or bias of the Assistant Commissioner of Labour against a particular employer and for any reason that can furnish a ground for mala fides and bias to that employer qua that Assistant Commissioner of Labour, on that ground any decision taken by the Assistant Commissioner of Labour in the appeal under Section 31(2) can be invalidated, but that would only relate to an individual case and not make out a ground of challenge to the validity and constitutionality of Rule 32 as amended by the Amendment Rules of 1977.
28. If an employee under the Beedi Workers Act is discharged, dismissed or retrenched illegally or unlawfully by the employer and he challenges the order of dismissal, discharge or retrenchment before the Appellate Authority, such appeals need to be heard and disposed of as expeditiously as possible to mitigate the hardship to such employee. Similarly, if the forum of such appeal is provided at nearer place the employee in the district as far as possible, it advances the objective for which the forum has been created under Sub-section (2) of Section 31. Though in the reply, the detailed facts which led to the necessity of amendment in the rules have not been given by the State, for the reasons stated in the aforesaid paragraphs and the arguments advanced by the Assistant Government Pleader, I am satisfied that by amendment to Rule 32 by divesting the Labour Courts from hearing such appeals and conferring such jurisdiction to hear such appeals on the Assistant Commissioners of Labour, no illegality has been committed and the said amendment is justified advancing the objective of Section 31(2) of the Beedi Workers Act. Thus, the notification published on 1.11.1977 by amending the rules is valid and constitutional and does not suffer from any vice of invalidity.
29. Having held that Section 31(2)(a) of the Beedi Workers Act and Rule 32 of the Maharashtra Beedi Workers Rules are constitutionally valid, now the order passed by the Assistant Labour Commissioner in each of the writ petition is to be examined on merits in the light of the contentions raised by the learned counsel for the petitioner-employer.
30. In Writ Petitions No. 15 of 1989 and 19 of 1989, the order passed by the Labour Court on 6.6.1988 is challenged by the learned counsel for the petitioner-employer on two grounds, viz. (i) that, the said workers were not employees of the employer, and (ii) that, the order passed by the Assistant Commissioner of Labour is perverse. Both the workers in these writ petitions, viz., Fulwantabai and Bayabai examined themselves on oath. Fulwantabai deposed on oath that she was working as beedi roller initially for about six years with Shri Chand Khan, contractor and her services were terminated with effect from 29.6.1986 and when she had gone to collect raw material, she was not supplied tobacco and tendu leaves. Similarly, Bayabai examined herself on oath and she deposed that she was working as beedi roller for the last 25 years with Shri Chand Khan, contractor and she was discontinued from the service with effect from 26.9.1986. Both of them also examined one Shri Devdas as their witness and he deposed that he has been working with Chand Khan, contractor for the last 20-25 years and the contractor was not issuing cards and provident fund was being deducted from his wages. Both the workers, according to him, were rolling beedis with the said contractor.
On the other hand, the employer examined Shri Chand Khan who admitted that he was working as contractor with M/s. Mohandas Hargovinddas and his contract has been terminated about two years back. He, in his examination-in-chief, expressed his ignorance about the workers Fulwantabai and Bayabai. In cross-examination he admitted that he had worked as a contractor for about 4-5 years and at that time, there were 38 workers working. On a suggestion being put to this witness whether the Government Labour Officer visited his place, he stated that he did not remember. However, in the reply filed by the employer, the fact that the Government Labour Officer visited Gondia, is not disputed. On the basis of the aforesaid evidence, it cannot be said that the Assistant Commissioner of Labour committed any error in arriving at the conclusion that both the workers viz., Fulwantabai and Bayabai were working with the contractor for the last so many years. No documentary evidence was produced by the employer to show that the workers were not in the employment with the contractor of the employer. The contractor and the employer under law are required to maintain registers, log-books etc. and from the production of the said documents if the workers were not working with them, it could have been shown that these two workers were not working with them as beedi workers. The very fact that no documentary evidence has been led by the contractor or employer leads to an adverse inference against the employer that had the documentary evidence in the nature of registers, log-books etc., been produced, that would have gone against the employer. The Assistant Commissioner of Labour, thus, rightly on proper evaluation and appreciation of evidence on record, concluded that the two workers, viz., Fulwantabai Bayabai were beedi workers with the petitioner-employer under law being in employment with contractor and the said finding is not vitiated and cannot be said to be perverse. Therefore, there is no merit in the contention of the learned counsel for the petitioner-employer in these two writ petitions and the order passed by the Assistant Commissioner of Labour on 6.6.1988 does not deserve to be interferred with in the extraordinary jurisdiction of this Court.
31. In Writ Petition No. 18 of 1989, the learned counsel for the petitioner-employer raised two contentions, viz., (i) that the appeal filed by the worker before the Assistant Commissioner of Labour was time barred and there was no application for treating the representation as appeal and, therefore, the Assistant Commissioner of Labour seriously erred in allowing the time barred application, and (ii) that, the order passed by the Assistant Commissioner of Labour was perverse. I do not find any merit in any of the contentions raised by the learned counsel for the petitioner-employer.
Service of Respondent No. 1 Tarachand Codaru Kalsarpe as Harawala (carrier of beedi basket) with contractor Ratiram Panduji Abule was terminated with effect from 18.7.1985 without any reasonable cause though he has been in his employment for the last about 15 years and since the contractor Ratiram was working as contractor of the present petitioner-employer, he initially filed an application challenging the termination order dated 18.7.1985 before the Government Labour Officer, Gondia on 5.8.1985. The said application dated 5.8.1985 filed by the worker Tarachand before the Government Labour Officer was registered as appeal under Section 31 of the Beedi Workers Act as Appeal No. 27 of 1985 (Annexure-B) and was posted for hearing on 10.9.1985. In response to the notice issued to the contractor and the employer of the said appeal, they raised objection on 1.10.1985 that the appeal has not been filed in accordance with the provisions of the Act and the same has been addressed to the Government Labour Officer. Since the objection was taken by the employer and the contractor about the format of the appeal, appeal was re-framed on 9.1.1987 and the said appeal has been decided by the impugned order dated 1.3.1988. Limitation for filing appeal under Section 31(2) read with Rule 32 is 30 days from the date of dismissal, retrenchment or termination and the termination of the worker being with effect from 18.7.1985, appeal filed on 5.8.1985 is on its fact with time. Merely because it was addressed to the Government Labour Officer, it cannot be said that the appeal was filed beyond time and the appeal filed by the worker on 5.8.1985 before the Government Labour Officer has been registered as Case No. 27 of 1985. An objection was raised by the employer and the contractor about the format of appeal on 1.10.1985 and accordingly, the appeal was re-framed though case number of appeal continued to be 27 of 1985. Thus it is clear that appeal filed by the worker was not time barred. In this view of the matter, there is no merit in the contention of the learned counsel for petitioner-employer that no application was filed for treating the representation as appeal under Section 31(2) of the Beedi Workers Act, 1966. Moreover, in the reframed appeal on 9.1.1987 in para 5, the worker has stated as under :-
'That as stated above, ultimately the appellant submitted the application to this Honourable authority on 5.8.1985, requesting for relief, but the respondents' side were taken objection that the appeal is not filed in proper form further relief is not maintained, therefore, with the kind permission from this authority, appellant has filed this appeal before this authority. Accordingly appeal is filed within time but for the one reason or the other if it is found that, the appeal is not within limitation then delay may be condoned taking into consideration above stated circumstances.'
Thus, even by way of abundant caution in the appeal which was re-framed, a prayer has been made that though appeal has been filed within time, but for any reason if the appeal is held to be not filed within time, then the delay may be condoned. In my view, the worker had filed appeal on 5.8.1985 and merely because it was addressed to the Government Labour Officer, it cannot be said that the same could not have been treated as an appeal. The substance of the matter is that the worker's services were terminated with effect from 18.7.1985 and within 30 days therefrom on 5.8.1985 grievance has been raised by filing application vide Annexure-A and the said application has to be treated as an appeal which was within time and, therefore, the argument of the learned counsel for petitioner-employer that appeal filed by the worker was beyond limitation, is devoid of any merit. Though Mr. Qazi submitted that the order passed by the Assistant Commissioner of Labour on 1.3.1988 is perverse, the learned counsel for the petitioner-employer could not demonstrate how the order of the Assistant Commissioner of Labour was perverse. The Assistant Commissioner of Labour on proper appreciation of evidence on record, concluded on facts that the worker has proved that he was in employment with the employer and that his services were terminated with effect from 18.7.1985 without reasonable cause. In support of his case, the worker examined one Shri Murlidhar Gondane while on the other hand, the employer and contractor examined the contractor. The Assistant Commissioner of Labour considering the entire evidence on record arrived at a positive finding and concluded that the worker was working as Harawala with the petitioner-employer. The finding recorded by the Assistant Commissioner of Labour is based on evidence on record and does not warrant any interference by this Court in extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India.
32. As regards Writ Petition No. 36 of 1989, the contention of the learned counsel for petitioner-employer is that the worker Smt. Sushilabai Sukhdas Gajbhiye was not employed and the fact of the matter was that her husband Sukhdas was employed who died in the year 1987 and, therefore, the Assistant Commissioner of Labour was not justified in allowing the appeal. The worker Sushilabai in her appeal under Section 31(2) of the Beedi Workers Act set up the case that she was rolling beedis for employer through the contractor for the last five years or so. The wage card was in the name of her husband and no card was issued in the name of worker Sushilabai. She further set up the case that her husband was ill for the last five years and she was rolling beedis on the card of her husband. Her husband died on 28.2.1987 and thereafter he services were terminated by the employer with effect from 2.3.1987. She averred in the application that on various occasions, she prayed for issuance of card, but no card was issued to her. In the reply, the employer and the contractor set up the case that worker Sushilabai was not in employment with any of them. Sushilabai examined herself and she deposed the same facts before the Assistant Commissioner of Labour. One Budharam Kawdu was also examined by the worker. After filing the written statement, however, the employer and the contractor did not appear and, therefore, the proceedings proceeded ex parte against them. On the basis of the case set up by the worker and the evidence led by her, it cannot be said that the Assistant Commissioner of Labour committed any error in coming to the conclusion that the worker was actually rolling beedis with the petitioner-employer and she was removed from service without any reasonable cause. The order passed by the Assistant Commissioner of Labour thus, does not call for any interference.
33. In Writ Petition No. 557 of 1989, the only contention raised by the learned counsel for the petitioner-employer is that worker Yashwant Kewaji himself had resigned as Chowkidar and his resignation having been proved, the Assistant Commissioner of labour erred in holding otherwise and allowing the appeal filed by worker Yashwant. It would be seen that the worker Yashwant in the appeal filed under Section 30(2) of the Beedi Workers Act came out with the case that he has been working as Chowkidar with the employer for about 15 years and had worked at several places of manufacturing beedis owned by the employer, but on 5.8.1983, an incident took place and thereafter on 6th, 7th and 8th August 1983 when he reported on duty, he was refused to be taken on duty and, therefore, prayed that his removal was bad in law. According to the worker, on 5.8.1983 at about 9.00 a.m. while he was chewing pan with Jafrani tobacco, one of the sons of the proprietor of the Firm called and asked him as to whether he was drunk and when the worker denied that he was drunk but was chewing pan, son of the proprietor of the Firm ordered him to go to operator, sign a paper and then come on duty on the next day and thereafter on 6th, 7th and 8th August 1993 when he went to joined duties, he was not permitted. In reply, the case set up by the employer was that the worker was caught red-handed in drunken state and when the employer asked as to why action should not be taken against him for the misconduct, asked the operator to write letter of resignation and he signed the same and, therefore, after having resigned, appeal filed by the worker was misconceived. Before the Assistant Commissioner of Labour, Hand-writing Expert was examined along with other witness. Hand-writing Expert in his deposition opinion that there was fraudulent retouching in the signature and he had mentioned its characteristic in para 3 of his statement of reasons and according to him, it was a case of a simulated forgery. The Assistant Commissioner of Labour took into consideration the entire evidence on record including the evidence of the Hand-writing Expert and came to the conclusion that signature of the employee on the said resignation letter is not proved. This finding of fact is recorded by the Assistant Commissioner of Labour on the basis of the evidence on record including the evidence of the Hand-writing Expert. This Court in exercise of its extraordinary jurisdiction would not substitute finding of fact recorded by the Assistant Commissioner of Labour. The reasons given by the Assistant Commissioner of Labour in holding that the signature of the worker on registration letter is not proved, are cogent and cannot be said to be against the weight of evidence on record. A finding of fact recorded by the Assistant Commissioner of Labour which is based on evidence on record, cannot be interfered with by this Court in writ jurisdiction merely because on reappreciation of the entire evidence, this Court may have a different opinion. In my view, discussion made by the Assistant Commissioner of Labour on the question whether the resignation letter bears the signature of worker Yashwant or not, is elaborate and detailed one and does not call for any interference by this Court.
34. Mr. Qazi, the learned counsel for petitioner-employer in Writ Petition No. 2037 of 1989 challenging the order dated 2.6.1988 passed by the Assistant Commissioner of Labour, contended that the worker's service was dismissed after holding enquiry and the misconduct of the worker Bhaulal Harinkhede having been proved before the Enquiry Officer on the basis of the evidence, the Assistant Commissioner of Labour was not justified in setting aside the dismissal order. Mr. Qazi contended that the worker Bhaulal Muka Harinkhede in the span of four months remained absent on 24 occasions and for this misconduct of the worker, domestic enquiry was instituted. Before the Enquiry Officer, worker remained absent though number of opportunities were given to him. The Enquiry Officer did ultimately submit his report holding that the charges against the worker have been proved and on the basis of the enquiry report, dismissal order was passed. It is not disputed that enquiry proceedings were proceeded ex-parte against the worker. In the facts and circumstances of the case, the Assistant Commissioner of Labour found that the worker was not given adequate opportunity to defend himself in the domestic enquiry. From perusal of the order passed by the Assistant Commissioner of Labour, it appears that the first date of enquiry before the Enquiry Officer was 11.8.1984 and on that date the worker remained absent and enquiry was adjourned to 25.8.1984 also the worker did not attend the enquiry proceedings and, therefore, ex-parte enquiry was conducted and report was sent to the management by Enquiry officer. On receipt of the enquiry report, by the order dated 3.9.1984, service of the worker was sought to be terminated with effect from 11.9.1984. The Assistant Commissioner of Labour on the basis of these facts coupled with the previous conduct of the employer, came to the conclusion that the Enquiry Officer did not afford reasonable opportunity to the worker and domestic Enquiry was completed ex-parte which was not in consonance with the principles of natural justice. It is not disputed by the learned counsel for the petitioner-employer that after receipt of the enquiry report, no notice was given to the worker to show cause that on the basis of the enquiry report, the worker should be dismissed from service. This aspect has also been taken into consideration by the Assistant Commissioner of Labour and in my view, rightly so, to hold that the order of dismissal was violative of the principles of natural justice. All in all, therefore, it cannot be said that the order passed by the Assistant Commissioner of Labour suffers from any infirmity or error of law warranting interference by this Court in extraordinary writ jurisdiction under Articles 226 and 227 of the Constitution of India.
35. Writ Petition No. 2135 of 1982 arises out of the order passed by the Assistant Commissioner of Labour on 29.7.1982 whereby he allowed the application for condonation of delay in filing the appeal. Admittedly, cause of action accrued to the worker Budhram Bakaram Tandekar on 23.2.1982 when his services were terminated. Appeal was filed on 12.4.1982, though the limitation for filing the appeal is 30 days. Application for condonation of delay was filed on 5.6.1982 and it was stated therein that on illegal termination of his services, the worker went to the office of the Beedi Company-employer at Goregaon to demand work and he was assured that he would be given work, but he was not given work and, therefore, delay occurred due to assurance. The Assistant Commissioner of Labour was satisfied that to meet the ends of justice, delay deserved to be condoned. Admittedly delay was hardly of few days and when the Appellate Authority has exercised the discretion in favour of the worker and condoned the delay, with such imminent and just order, this Court in its extraordinary jurisdiction, would not interfere with the discretionary order. In Collector, Land Acquisition, Anantnag & Anr. v. Mst Katiji & Ors. the Supreme Court has held as under :-
'The legislature has conferred the power to condone delay by enacting S. 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that :-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so .......'
Applying the aforesaid principles with justice-oriented approach, it cannot be said that the Assistant Commissioner of Labour committed the delay in filing the appeal when delay was hardly of a few days, in the interest of justice. No interference is, thus, called for in the order passed by the Assistant Commissioner of Labour on 29.7.1982 impugned in Writ Petition No. 2135 of 1982.
36. In the result, there is no merit in these seven writ petitions and all the writ petitions are dismissed with no order as to costs. Rule is discharged in all these writ petitions.