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PETITIONER: SWAPAN KUMAR CHOUDHARY & ORS.

       Vs.

RESPONDENT: TAPAS CHAKRAVORTY & ORS.

DATE OF JUDGMENT12/05/1995

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) RAMASWAMY, K.

CITATION:  1996 AIR  662            1995 SCC  (4) 478  JT 1995 (9)   654        1995 SCALE  (3)723

ACT:

HEADNOTE:

JUDGMENT:                            J U D G M E N T HANSARIA. J.      The West  Bengal Factories  Service  (hereinafter  ‘the Service’)  presently   has  three  types  of  Inspectors  of Factories.  Such   Inspectors  are   needed  by   the  State Governments to  carry out  the  functions  assigned  to  the former by section 9 of the Factories Act, 1948. Section 8 of this Act has empowered the State Governments to appoint such persons  as  possess  the  prescribed  qualification  to  be Inspectors and  the Government may assign to them such local limits as it may think fit. 2.    The  Service as  constituted in  1959 had  27 posts of Inspector of  Factories in the pay scale of Rs. 660-1600. It had its  own promotional  channel. The  post higher  to  the Inspector being  that of  Deputy Inspector, then Joint Chief Inspector and finally Chief Inspector. 3.    The  matter relating  to pay  scale of  the  aforesaid Inspectors came  to be  agitated by  West  Bengal  Factories Service Association  in the  wake of  State Pay Commission’s recommendations of  1980. As per the recommendations of that Pay Commission, scale No. 18 (Rs. 1100-1900) was to be given to  Inspector   of  Factories,   Inspector  of   Boiler  and Electrical  Inspector.  The  Government,  however,  did  not accept the  recommendation qua  Inspector of Factories. This led the  aforesaid Association to approach the Calcutta High Court in  Writ Petition  No. 7257/83  with the  prayer  that scale NO.  18 should  be  made  available  to  Inspector  of Factories also.  A learned  single Judge  allowed the prayer making the  scale effective  from 1972 for some and 1975 for others. The  State’s appeal  was dismissed  by  the  Letters Patent Bench  of the  High Court  which, however,  made  the scale available  to all  with effect  from 1.4.1981. On this Court being  approached in  Civil Appeal  No. 392 of 1987 by the State,  by order  dated January 28, 1988, the appeal was dismissed by  stating that  having  regard  to  the  special

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features of  the case  no ground for interference was found. The State  Government thereafter  issued G.O. dated 6.8.1988 with  the  concurrence  of  Finance  (Law  Cell)  Department U.O.No.G.L. 678/88  dated 28.7.1988. By that G.O., the scale of pay of Inspector of Factories was made Rs. 1100-1900 with effect from 1.4.1981. 4.    In the wake of the Bhopal gas tragedy, a need was felt by the  State to  have a  Chemical Wing,  and so, a separate cadre of  Inspector of  Factories (Chemical)  was created by Notification dated  26.6.1986 with its own recruitment rules framed in  exercise of the power conferred by the proviso to Article 309  of the  Constitution. These rules laid down the method of recruitment, qualifications for direct recruitment and the  only promotional  post made  available was  that of Deputy Chief  Inspector of Factories (Chemical). It may also be stated  that by  Notification dated 10.8.1987 recruitment rules were framed in exercise of aforesaid power for filling up the  posts of  Medical  Inspector  of  Factories  in  the Service. Thus,  the Service  came to consist of not only the Inspector of  Factories, stricto  sensu,  but  Inspector  of Factories (Chemical)  and Medical Inspector of Factories. In the Present  appeals,  though  we  are  concerned  with  the service conditions  of Inspector  of  Factories  (Chemical), there is no dispute that out decision shall apply equally to the Medical Inspector of Factories. 5.    One  of the  disputes raised by Inspector of Factories (Chemical) relates  to their  pay scales. According to these Inspectors, though while constituting their cadre and giving appointments to  them the  scale mentioned was Rs. 660-1600, they are  also entitled  to scale No. 18, because, according to them,  after the State Government had taken a decision to change  the   nomenclature  of   Inspectors   of   Factories (Chemical)  and   Medical   Inspectors   of   Factories   as ‘Inspectors of factories’, vide Labour Department’s Memo No. 932-GE dated  7.4.1989, no  distinction in  the condition of service in  the three  cadres  is  permissible.  After  this decision of the Government, the Chief Inspector of Factories issued an order dated 12.5.1989 fixing the pay of Shri Tapas Chakravorty, one  of the Inspectors of Factories (earlier in the Chemical wing) as Rs.1100. A perusal of this order shows that  this  fixation  had  been  done  in  terms  of  Labour Department’s aforesaid  order of  6.8.1988. To  complete the necessary facts, it may be stated that the Government in the Labour Department issued letter dated 25.9.1990 to the Chief Inspector of  Factories In-charge stating that as advised by Finance (Law  Cell)  Department,  it  is  requested  not  to implement  the  Department’s  order  of  7.4.1989  regarding change of nomenclature. 6.    On the strength of the Government’s order of 7.4.1989, some of  the Inspectors  of  the  Chemical  wing  approached Calcutta High Court seeking a direction to the State to make and publish  a common  gradation list  in respect of all the three  categories   of  Inspectors   and  to  provide  equal opportunity of promotion. A learned single Judge allowed the prayer. On  appeal being preferred by the State, the Letters Patent Bench  dismissed the  appeal.  This  Court  has  been approached by  special leave  by the State of West Bengal in SLP(C) No.  15170  of  1994  and  by  some  of  the  private individuals in  SLP(C)  No.  14894  of  1994  who  had  been recruited to the original posts of Inspectors of Factories. 7.    The  point for  determination  is  whether  the  three aforesaid posts of Inspector of Factories can be regarded to belong to  one cadre meriting one gradation list for all and making available  the posts  of Joint  Chief  Inspector  and Chief Inspector  to all  the three types of Inspectors. Shri

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Satish Chandra,  appearing for  the respondents has advanced four submissions  to support the impugned judgment. He first contends that  section 8  of the  Factories Act knows of one post of  Inspector of  Factories Act  knows of  one post  of Inspector  of   Factories  and  there  cannot  be  any  sub- classification of  that post.  The learned  counsel’s second submission  is  that  the  State  Government  itself  having resolved to  change the  nomenclature,  vide  its  order  of 7.4.1989, the  subsequent letter  of  the  Department  dated 25.4.1990 desiring  non-implementation of  that order cannot take away  the legal  force of  the first  order cannot take away the legal force of the first order for two reasons: (1) The first was addressed to even Pay and Accounts Officer and Finance(A)   Department,    whereas   the   second   was   a communication only  to  Chief  Inspector  of  Factories  In- charge. (2)  The first  was at the direction of the Governor as stated  therein, about  which the second order is silent. The third contention is that the pay scale of both the types of Inspectors  having been  made as  Rs.  1100-1900  by  the aforesaid  letter   of  Chief  Inspector  of  Factories,  no distinction  is   merited  between  the  two  wings  of  the Inspectors. It  is finally  urged that  as  the  duties  and functions of both the wings of the Inspectors are same, even otherwise, same  pay scale  has to  be made available to the Inspectors of  both the wings on the principle of ‘equal pay for equal work’. 8.    As  to the reliance on section 8 of the Factories Act, we would  observe that the same does not advance the case of the respondents inasmuch as a perusal of the same shows that even a District Magistrate is an ex-officio Inspector of his district, as  mentioned in sub-section (4). This apart, sub- section (2B)  states that  every Additional Chief Inspector, Joint Chief  Inspector, Deputy  Chief  Inspector  and  every other  officer   appointed  under   sub-section  (2A)  shall exercise the  powers of  an Inspector  throughout the State. The need  for this exists because of what has been stated in section 9 relating to powers of Inspector. So, unless one is an Inspector,  he cannot  exercise those  powers. It cannot, therefore, be  said that  section 8  contemplates  only  one category of  Inspector of  Factories. According  to  us,  it would permit the State Government to have different types of Inspectors by assigning different functions to them. 9.    The  second submission is based on form only. The mere fact that  the first order dated 7.4.1989 had been addressed to  some   other  persons  apart  from  Chief  Inspector  of Factories and  is stated to have been issued at the order of the Governor,  whereas the  second  is  only  to  the  Chief Inspector of  Factory In-charge  and does  not mention about issuance at  the direction of the Governor, cannot take away its weight.  Even if some concession is made in this regard, the mere  fact of  one nomenclature has no material bearing, unless we  are satisfied about the justification or legality of granting  of same  pay scale to both the wings and/or the duties and functions of both being same. 10.   Shri  Satish Chandra  has taken  pains to contend that the aforesaid  communication of Chief Inspector of Factories by which  the pay  scale of Rs. 1100-1900 was made available even  to   an  Inspector   of  Factories  (Chemical),  shows clinchingly that  the pay  scale of both the wings has to be accepted as  same. We have found it difficult to accept this submission because  the G.O. of the Labour Department, which has been  mentioned in  the communication of Chief Inspector of Factories,  had been  issued after  this Court’s order of 28.1.1988 which  was connected  with the Writ Petition filed in the  High Court  in 1983, by which year the Chemical Wing

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was not  even born.  Learned counsel  agrees  to  this,  but contends  that  the  common  nomenclature  had  come  to  be accepted  by   the  Government  in  April,  1989  after  the Factories Service  Association had moved a contempt petition in the  High Court,  when the  pay scale of Rs.1100-1900 was not available to the Inspectors of Factories (Chemical), and the Government  realised that this wing could not be treated differently. This  may be the background of the Government’s decision to  change the  nomenclature, but  we would  not be justified in  conceding the pay scale of Rs.1100-1900 to the Inspectors of Factories (Chemical) merely on the strength of the aforesaid  letter of Chief Inspector of Factories, as it was principally  founded on the G.O. of 6.8.88, which had no connection with  the pay scale of chemical wing. It would be a different  matter if  the duties and functions of both the wings were  to be same or similar, they would be required to be paid  same pay,  on the principle of ’equal pay for equal work.’ 11.   This  takes us  to the  last contention of Shri Satish Chandra which is that both the wings of Inspectors discharge same or  similar functions.  In this connection, it is first mentioned that  the  local  limit  of  both  the  type    of Inspectors is  same. This,  however, does  not  advance  the matter, because  a local limit has to be prescribed, in view of what  has been stated about the powers of an Inspector in section 9  of the  Factories Act. What would be clinching in this regard  is  the  actual  duties  and  functions  to  be discharged by  the each  of the two wings. On this aspect of the matter, the submission of the learned Solicitor General, who has  appeared for  the State,  is that  the  duties  and functions of  the two  wings, or  for that  matter the three wings,  are   not  same  or  similar.  To  bring  home  this contention,  our   attention  is   invited  by  the  learned Solicitor to Annexure-P.2, which is a part of the additional affidavit filed  in SLP(C)  No. 15170/94,  pursuant  to  the direction of this Court given on 24.3.1995. This Annexure is a  tabulation   relating   to   various   matters   touching recruitment, duteis  and functions  and avenues of promotion of three wings. A perusal of that part of the Annexure which deals with  ’duties and  functions’ shows that the principal duty of  the Chemical wing is confined to preparation of the list of  hazardous industries and measures to be adopted for avoiding major  accidents and  hazards relating  to chemical processes and  chemical industries  situate within the local limits of  the  concerned  Chemical  Inspector.  Duties  and functions of Inspectors of Factories cover wider field. 12.  Shri Satish  Chandra would not agree with the aforesaid analysis of  the duties  and functions  of  the  two  wings. According to  him, though  the Chemical Inspectors primarily do work  connected with  the checking of hazards in chemical industries, they  also perform  some of the functions of the main wing  of Inspector of Factories. He submits that really both the  types of  Inspectors perform  the same  duties. To bring home  this, we have been referred to Advertisement No. 34/86  which  had  appeared  in  the  Ananda  Bazar  Patrika mentioning about  four temporary  vacancies in  the posts of Inspector of Factories (Chemical) mentioning their duties as "To  inspect   factories,  organise   and   administer   the provisions of  Factories Act  and Rules  relating to safety, health, welfare,  etc. and other labour laws." Our attention is then  invited to  the advertisement  as appearing  in the Statesman of  28th March,  1987 relating to ten vacancies of Inspectors of Factories about whose duties it was mentioned: "To  inspect   Factories  with  a  view  to  administer  (a) provision of  the Factories  Act &  Rules relating to Safety

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and Health, Welfare, etc. and (b) provisions of other Labour Laws." 13.  After the appeals had been heard in part on 5.5.1995, a ’Compilation of  Additional Documents’  was filed on 8th May on behalf  of the  appellants, in which one of the documents is about the duties of the officers in the chemical cell. We have perused  the same.  We have  also gone through the work done by the "Chemical Cell" as mentioned in the publications of the  Department of  Labour, Government  of  West  Bengal, titles "Labour  in West Bengal" which are for the years 1991 and 1995.  A cursory  glance of  the work  of this  Cell  as detailed in  these publications  has convinced  us that this cell had  done good  amount of work; of course, relatable to different aspects connected with Major Accident Hazards. 14.   Thus,  there is  much force  in the contention of Shri Satish Chandra  that as  in the  main wing  of Inspectors of Factories there  are electrical  experts, mechanical experts and civil  experts, in  the chemical wing there are chemical experts. According  to us,  the learned  single Judge of the High  Court   was  right  in  stating  that  if  electrical, mechanical and civil engineers could form part of one cadre, so could,  chemical engineers.  Even so, we would agree with the learned Solicitor General that by giving the directions, in question,  the High  Court almost revised the recruitment rules which  was not  within its  competence. We  also agree that by  directing the  State to  make available  the higher post to  Deputy Chief  Inspector of  Factories (Chemical), a legal error  was committed,  as the  same amounted to laying down conditions  of service  of Government  employees, which either the State Legislature in exercise of its powers under Article 309  of the Constitution, or the State Government in exercise of the power under the proviso to that article, can do. However,  on being  satisfied that  a  strong  case  for forming a  common cadre for all exists, we require the State Government to  apply its  mind to  this aspect of the matter and, so  too, to  make available  the same  pay scale to all types of  Inspectors of Factories. The distinction which has been repeatedly highlighted by the learned Solicitor General in the  working of  different wings  is, according  to us, a distinction without  a difference.  This submission  of  the learned State counsel has, therefore, not impressed us. 15.    Before  closing, we  may  deal  with  the  additional submission advanced  by the counsel of the appellants in the appeal arising  out of  SLP(C) No.14894/94. The same is that if higher  posts are  made available  to  the  Deputy  Chief Inspector of  Factories (Chemical),  the promotional chances of  the  main  wing  of  Inspector  of  Factories  would  be jeopardized. This  submission is misconceived inasmuch as if a common  cadre is  formed, instead  of nine posts of Deputy Chief  Inspector   which  were   earlier  available  to  the Inspector of  Factories in  the main  wing, ten  posts would become available.  This apart, those Deputy Chief Inspectors of Factories  in the main wing who had come to be  appointed prior to the Deputy Chief Inspector of Factories (Chemical), would remain  senior and  would have  higher  claim  to  the promotional post  of Joint  Chief Inspector and, as such, no harm would really be caused to them because of the formation of a common cadre. 16.     While, therefore, allowing the appeals on the ground that the  High Court exceeded its jurisdiction in giving the directions in  question, we  require  the  State  Government itself to  apply its  mind to what has been stated above and to take  the necessary  decisions within a reasonable period keeping in view the aforesaid observations. In the facts and circumstances of  the case,  we leave  the parties  to  bear

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their own costs throughout.