ORDER
G.N. Ray, J.
1. Leave granted.
2. This appeal is directed against the judgment dated October 1, 1992 passed by the Division Bench of the Andhra Pradesh High Court in Writ Appeal No. 581 of 1992 affirming the order dated April 24, 1992 passed by the single Bench of the Andhra Pradesh High Court in Writ Petition No. 2385 of 1992. The respondent, Sri T. Prasad, was appointed as a Personnel Officer of the appellant-Company registered under the Companies Act, on June 18, 1990. Initially, he was placed on probation and on April 20, 1991, his service was confirmed by the said Company. It was inter alia provided in the terms of appointment that the services of the respondent could be terminated with a month’s notice or salary in lieu thereof. On October 8, 1991, the employment of the said respondent was terminated by giving a month’s salary in lieu of notice. The said respondent thereafter questioned the legality and validity of the order of termination by filing a Writ Petition before the Andhra Pradesh High Court. It was contended that he was assured at the time of appointment by the Genera! Manager of the Company that he would be promoted as Assistant. Manager (Personnel) after confirmation and his pay would be fixed at par with other Assistant Manager working in the organisation @Rs. 4500/- per month and he would be provided with transport from Gudur to the factory every day. But after confirmation, such benefits were not given to him and as he insisted for implementing the assurances, his employment was unjustly terminated on October 8, 1991. The said respondent also contended that by virtue of his appointment as Personnel Officer he had to look after the welfare of the labourers employed in the factory. Accordingly, his appointment must be held to be statutory appointment under Section 49 of the Factories Act. Hence, his service conditions are governed by the Factories Act and the Rules made thereunder and the termination of the services of Labour Welfare Officer cannot be made without concurrence of the Commissioner of Labour, Government of Andhra Pradesh. As such the termination made in breach of the said statutory provision, must be held to be illegal and void.
3. In the writ proceedings, the appellant, Shyam Vinyals Ltd., raised a preliminary objection about the maintainability of the writ petition inter alia on the ground that Sri Prasad was not appointed as a Labour Welfare Officer under Section 49 of the Factories Act and that there was no statutory requirement of appointing any Labour Welfare Officer by the appellant under the Factories Act. Hence, there was no question of breach of the Factories Act and the Rules made thereunder as sought to be contended. Secondly, the Company was not a State under Article 12 of the Constitution. As such the writ petition was not maintainable for challenging the termination of service of Sri Prasad and the termination of service was a matter of contract between the Company and its employee.
4. The learned single Judge, however, allowed the Writ Petition inter alia on the finding that though Sri Prasad was appointed as Assistant Personnel Officer he was required to look after the welfare of the workers, he should be deemed to be a Labour Welfare Officer and as such the provisions of Section 49 of the Factories Act were attracted. The learned single Judge further held that the employment of the writ petitioner was clothed with a duty of public nature. As such, the writ petition was maintainable for challenging the termination of service.
5. The appellant-Company thereafter preferred an appeal before the Division Bench of the said High Court being Writ Appeal No. 581 of 1992. The appeal Court, however, held that the Company was not an instrumentality of the State Government and was not a State within the meaning of Article 12 of the Constitution. The Court of Appeal, however, held that although there was no statutory requirement to appoint Sri Prasad as a Labour Welfare Officer but Sri Prasad was also required to look after the welfare of the labourers of the factory in the discharge of his duties as a Personnel Officer. Hence, he should be deemed to be Labour Welfare Officer within the meaning of Section 49 of the Factories Act and the Rules made thereunder. Since the conditions of service of Labour Welfare Officer are statutorily controlled by the provision of the Section 49 of the Factories Act and the Rules made thereunder and as the termination of the services of a Labour Welfare Officer cannot be effected without the concurrence of the Commissioner of Labour of the State Government, the writ petition was maintainable and Sri Prasad was entitled for appropriate writs quashing the illegal order of termination.
6. Against such decision passed in the Writ Appeal the instant appeal has been preferred before this Court. Mr. P.P. Rao, learned Counsel appearing for the appellant has contended that it is an admitted position that the labourers employed in the factory do not exceed 100 and as such there is no statutory requirement under the Factories Act to engage any Labour Welfare Officer. He has contended that the Writ Petitioner-respondent was not appointed as Labour Welfare Officer and admittedly he was appointed as a Personnel Officer of the Company. Simply because a Personnel Officer in discharging his duties and functions had been dealing with the problems of employees of the factory and by that process had to look after the welfare of the employees of the factory, it cannot be contended that Sri Prasad held a statutory position of that of a Labour Welfare Officer within the meaning of Section 49 of the Factories Act. He has drawn the attention of the Court to the provisions prescribed under Rule 76-B of the Andhra Pradesh Factories Rules. Rule 76-B (3) enjoins that a Committee should be appointed by the occupier of the factory and it is that committee alone which can recruit Welfare Officer and such appointment is required to be notified to the Commissioner of Labour and Chief Inspector of Factories. The procedure stipulated under Rule 76-B (3) of the Rules was admittedly not followed in the matter of appointment of Sri Prasad because there was no statutory requirement of engaging any Labour Welfare Officer. He has contended that under Rule 76-B(3) the post of Labour Welfare Officer was required to be advertised in two newspapers having a wide circulation in the State, one of which should be an English newspaper and the required number of Welfare Officers should be appointed within 120 days from the date on which such appointments are due to be made under Sub-rule (1) of Rule 76-A or from the date of resignation/dismissal/ termination of services of any Welfare Officer. He has, therefore, contended that both the single Bench and the Division Bench of the Andhra Pradesh High Court have failed to consider that the statutory requirement for appointing a Labour Welfare Officer had not been followed in the case of employment of Sri Prasad for the simple reason that Sri Prasad was never appointed as a Labour Welfare Officer. He has submitted that even if it is assumed that although there was no statutory requirement to appoint a Labour Welfare Officer in a factory which has less than 500 labourers, the Company was within its right to appoint a Labour Welfare Officer, if it had so desired, it is quite apparent in the facts of the case that Sri Prasad was not appointed as Labour Welfare Officer because for a valid appointment of a Labour Welfare Officer, the aforesaid Rules were required to be followed and it is not the case of the petitioner that he was appointed by following such Rules. He has, therefore, submitted that simply because a Personnel Officer was dealing with the problems and welfare of labour in the administration of the Company, he cannot be deemed to be a Labour Welfare Officer within the meaning of Section 49 of the Factories Act and the Rules made thereunder. Accordingly, there was no question of violation of any statutory rules in terminating the services of Sri Prasad. It cannot also be held that Sri Prasad was holding a public office discharging statutory duties and functions as held by the High Court. He has, submitted that the terms of appointment of Sri Prasad clearly lay in the realm of private contract between the parties and for the breach of such contract, no writ petition was maintainable.
7. Mr. Prasad, appearing in person has in his fairness stated before us that in the factory where he was employed by the Company the number of labourers was less than 100. Hence, there was no statutory requirement under Section 49 of the Factories Act to engage any Labour Welfare Officer. He, however, contended that although there may not be any statutory requirement of engaging a Labour Welfare Officer, the Company was quite within its right to appoint a Labour Welfare Officer if the Company had so desired. He has submitted that in the instant case, he was appointed as a Personnel Officer and since there was no Labour Welfare Officer in the Company he was entrusted to look after the welfare of the labourers employed in the factory of the Company. Accordingly, he was discharging the duties of the Labour Welfare Officer. In the aforesaid circumstances, the High Court was justified in holding that he being a Labour Welfare Officer, his employment cannot be terminated without the concurrence of the Commissioner of Labour and the provisions of the Factories Act and Rules framed thereunder were applicable so far as the conditions of service of Sri Prasad were concerned. He has, therefore, submitted that the High Court was justified in allowing writ petition by quashing the order of termination and no interference is called for against such order. He has also submitted that the condition of terminating the services with a month’s notice was highly improper and arbitrary and such condition was imposed by the Company by taking advantage of the high degree of unemployment in the country. He has submitted that this Court has struck down such unreasonable terms of service and the Company should not be permitted to resort to such unfavourable conditions of service so far as the writ petitioner is concerned by taking the plea of contract of service.
8. After considering the respective contentions of the parties, it appears to us that Sri Prasad was appointed as an Assistant Personnel Officer of the Company and not as a Welfare Officer. Simply because as a Personnel Officer he was also looking after the problems of the labourers and for that matter the welfare of the labourers, it cannot be held that he was in fact appointed as a Labour Welfare Officer. Admittedly, the number of labourers in the concerned factory was less than 100 and there was no statutory requirement to appoint a Labour Welfare Officer. Even if it is assumed that the Company on its own could appoint a Labour Welfare Officer, it does not appear in the facts and circumstances of the case that Sri Prasad was appointed as a Labour Welfare Officer because for appointing a Labour Welfare Officer, Rule 76-B of the Andhra Pradesh Factory Rules were required to be followed and it is nobody’s case that he was appointed by following such Rules. In the aforesaid circumstances, the High Court has clearly erred in holding that Sri Prasad was in fact appointed as a Labour Welfare Officer and the termination of service having been effected without following the statutory provisions for termination of services of a Labour Welfare Officer, the order of termination is liable to be quashed. We, therefore, allow this appeal and set aside the order passed in the writ petition and also in the writ appeal. It is not necessary for the disposal of this appeal to express any opinion as to justification of termination of the service of Sri Prasad and such question therefore has not been taken into consideration. In the facts of the case, there will be, however, no order as to costs. The sum of Rs. 2,000/- directed to be paid to the respondent towards meeting the expenses for stay in Delhi under the order of this Court dated February 26, 1993, shall be retained by him.