C. Ramakrishna and Another vs The Chief Inspector of Factories, Madras and Another

Nainar Sundaram, J.—The petitioners, in these two writ petitions are brothers. They are licensed to produce salt. They own salt pans at Chunampet, Madhuranthakam Taluk, Chengalpatu district. The Inspector of Factories, Cuddalore, treated the salt pans owned by the petitioners as covered by the Factories Act 63 of 1948, hereinafter referred to as the Act, and on the ground that certain irregularities were noticed, on inspection wanted to prosecute proceedings under the Act on that basis. The petitioners appealed against the orders of the Inspector of Factories to the Chief Inspector of Factories, Madras contending that the salt pans are owned by them, the operations that are being carried on in the said salt pans and the persons employed therein would not come within the purview of the Act. The appeals have been rejected by the Chief Inspector of Factories, Madras. The petitioners have impugned the orders of the Chief Inspector of Factories, Madras, in the present writ petitions. The petitioners-repeat their contentions on merits with reference to the inapplicability of the provisions of the Act to the salt pans owned by them. But, the primary ground of attack that has been projected by Mr. R. Rajaram, Learned Counsel appearing for the petitioners is that the Chief Inspector of Factories, Madras while hearing the appeals under the Act; is exercising quasi-judicial powers and the rejection of the appeals without affording, an opportunity to the petitioners to present their case in person, is not only violative of the principles of natural justice but also runs control to the mandates of the provisions of the Act and the Rules framed by the State of Tamil Nadu under the Act.

S. 107 of the Act deals with appeals and it runs as follows :-

Appeals: (1); The manager of a factory on whom an order in writing by an Inspector has been served under the provisions of, this Act or the occupier of the factory may, within thirty, days of the service of the order, appeal against it to the prescribed authority and such authority, may, Subject to rules made in this behalf by the State Government confirm, modify or reverse the order.

(2) Subject to rules made in this behalf by the State Government which may prescribe classes appeals which shall not be heard with the aid of assessors the Appellate Authority may, or if so required in the petition of appeal shall, hear the appeal with the aid of assessors, one of whom shall be appointed by the Appellate Authority and the other by such body representing the industry concerned as may be prescribed.

Provided that if no assessor is appointed by such body before the time fixed for hearing the appeal, or if the assessor so appointed fails to attend the hearing at such time, the Appellate Authority may, unless satisfied that the failure to attend is due to sufficient cause, proceed to hear the appeal without the aid of such assessor or, if it thinks fit without the aid of any assessor.

(3) Subject to such rules as the State Government may make in this behalf and subject to such conditions as to partial compliance or the adoption of temporary measures as the Appellate Authority may in any case think fit to impose, the Appellate Authority may if it thinks fit suspend the order appealed against pending the decision of the appeal.

Rules have been framed by this State and R. 98 is relevant. It would suffice the purpose if Cls. (1) and (2) of R. 98 alone are extracted as follows :-

Procedure in appeals : (1) An appeal presented under S. 107 shall lie to the Chief Inspector, or to the Commissioner of Labour incases where the order appellate against is an order passed by the Chief Inspector or, in cases where the order appealed against is an order of the Commissioner of Labour, to the State Government or to such authority as the State Government may appoint in this behalf and shall be in the form of memorandum setting forth concisely the grounds of objection to the order and bearing court-fee stamp in accordance with Art. 11 of Schedule II to the Court-fees Act, 1870 and shall be accompanied by a copy of the order appealed against, certified correct and attested by the Inspector concerned and duly stamped under the same Act.

(2) Appointment of assessors : On receipt of the memorandum of appeal, the Appellate Authority shall, if it thinks fit or if the appellant has requested that the appeal should be heard with the aid of assessors, call upon the body declared under sub-rule.

(3)... to be representative of the industry concerned, to appoint an assessor within a period of 14 days. If an assessor is nominated by such body, the Appellate Authority shall appoint a second assessor itself. It shall then fix a date for the hearing of the appeal and Shall give due notice of such date to the appellant and to the Inspector whose order is appealed against, and shall call upon the two assessors to appear upon suds date to assisted the hearing of the appeal.

The Chief Inspector of Factories, Madras, is admittedly the authority enjoined with the duty to dispose of the present appeals. There cannot be any doubt that when he deals with the appeals and decides them, they will involve civil consequences in the sense that the rights of the petitioners are likely to be affected one way or the other. Sub-S.(2) of S. 107 of the Act definitely speaks about the hearing of the appeal. With regard to taking in the aid of the assessors, sub S.(2) of S. 107 read along sub-R.(2) of R. 98, gives a discretion to the Appellate Authority to take such aid, if it thinks fit to do so. But if the appellant requires it in the petition of appeal, then the Appellate Authority shall hear the appeal with the aid of assessors. The procedure and formality of appointing the assessors are prescribed by the section and the rule. The proviso to Sub-s.(2) of S. 107 speaks about a time being fixed for hearing the appeal. Sub-R.(2) of R. 98 also states that the Appellate authority shall fix a date for the hearing of the appeal and shall give due notice of such date to the appellant and to the Inspector whose order is appealed against. It further states that the Appellate Authority shall call upon the two assessors-obviously only where they are appointed as per the provisions to appear upon such date to assist in the hearing of the appeal. The proviso to Sub-s.(2) of S. 107 also contemplates a contingency where no assessor is appointed by the representative body or where the assessor is appointed by the representative body does not turn up for hearing and it says that the Appellate Authority may proceed to hear the appeal without the aid of such assessor. It does not stop with this. It further gives a discretion to the Appellate Authority if it thinks fit to hear the appeal without the aid of any assessor. This, to a very great extent, gives an indication that the hearing of the appeal by the Appellate Authority is an essential process which should be adhered to for the purpose of disposing of the appeal by the Appellate Authority which is definitely discharging the functions of a quasi-judicial tribunal It will be the just and proper construction of the provisions of S. 107 as well as R. 98 to say that the hearing of the appeal is a mandatory process, which could not be ignored, before there is a proper disposal of the appeal by the Appellate Authority. It is worthwhile to note the meaning attached to the expression ''hearing'' in Webster''s Seventh New Collegiate Dictionary and it is as follows :

Opportunity to be heard to present one''s side of a case.

In Shorter Oxford English Dictionary, two of the meanings attached to the expression ''hearing'' are as follows:

The listening to evidence and pleadings in a court of law.

The trial of a cause.

I do not think that it was the intendment of the legislature that there should be a hearing of the appeal only in a case where the appeal is heard with the aid of the assessors either at the instance of the appellant or at the discretion of the Appellate Authority. As pointed out above, the order that gets passed after the hearing of the appeal will be a quasi-judicial order. In such a case, opportunity to the party interested in the dispute to present his case on a question of law as well as of fact is essential. Only after such presentation, it would be possible for the Appellate Authority to ascertain and assess the facts from the materials placed before it. The Appellate Authority would also be duty bound to disclose to the appellant any material which is intended to be used against the appellant. It is only after an assessment of the facts with reference to the law applicable, it is possible for the quasi judicial tribunal to pronounce a determination one way or the other. These factors definitely compel the Appellate Authority under the Act to afford a personal hearing to the appellant before his appeal is disposed of.

Admittedly, in the instant cases no such opportunity of personal hearing has been afforded to either of the petitioners. No date for the hearing of the appeals was fixed and notified to either of the petitioners. The disposal of the appeals in a summary manner runs contra to the well-accepted norms of disposals of appeals by the quasi-judicial tribunal as indicated above. This is besides the construction which I have spelt out on the provisions of the section as well as the rule referred to above, which in my view, do indicate that there should be a hearing of the appeal in the presence of either the appellant or his authorised representative before orders are passed thereon. These factors compel me to interfere in writ proceedings and accordingly, these writ petitions are allowed and the matter will stand remitted back to the Chief Inspector of Factories, Madras for him to dispose of the appeals in accordance with law and in the light of the above observations. There will be no order as to costs in these writ petitions.

Until the disposal of the appeals by the Chief Inspector of Factories, Madras, prosecutions stated to have been launched against the petitioners shall not be further proceeded with.