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B.N. Srikrishna, J.—This Writ Petition under Article 227 of the Constitution of India is directed against an order of the Industrial Court, Kolhapur dated 7th August 1989 made in Revision Application (ULP) No. 18 of 1988 u/s 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as ''the Act'').
The Petitioner is an ex-employee of the 1st Respondent which is a Co-operative Society carrying on the business of manufacturing off sugar in its Karkhana in Daulatnagar District Satara.
The Petitioner was appointed on 24th March 1982 as a Trainee Welfare Officer. Though the 1st Respondent held a B.A. Honours degree, a degree of M.S.W. from Rural Development College, Aurangabad and a Diploma in Labour Laws and Labour Welfare, he did not possess the qualification prescribed under Rule 3 of the Maharashtra Welfare Officers (Duties, Qualifications and Conditions of Service) Rules, 1966, which is a condition requisite for the appointment of a Labour Welfare Officer u/s 49 of the Factories Act. By a letter dated 10th February 1983, the 1st Respondent applied to the Government of Maharashtra and requested it to relax the minimum qualification prescribed under Rule 3(3) of the Maharashtra Welfare Officers (Duties, Qualifications and Condition of service) Rules, 1966 in so far as the Petition was concerned. The grounds urged in support of the application were that there was severe shortage of persons holding the requisite qualifications, who were prepared to come and work in a rural area, and that the services of the petitioner had been found to be extremely useful. Though the number of workers working in the factory of the 1st Respondent at the material time was more than 500, there was an erroneous communication to the Government that, the said number was less than 500. This resulted in the Government addressing a letter dated 19th July 1983 to the 1st Respondent and communicating that inasmuch as the 1st Respondent''s factory employed less than 500 workmen it was not obligatory to appoint a qualified Welfare Officer under the provisions of the Factories Act, 1948 and, therefore there was no need for relaxing the qualifications prescribed under the applicable Rules. After satisfactory completion of his training period, by an office order issued on 13th September 1983 the petitioner was absorbed as a Welfare Officer in the regular applicable pay scale, though it was stated that he would remain on probation for a period of three months in the first instance. By a letter dated 3rd January 1984, the 1st Respondent once again applied to the Government of Maharashtra for relaxation of the minimum qualifications in so far as they were applicable to the Petitioner. In the letter it was correctly stated that the total strength of employees was 525 at the material time. It appears that, in the mean while, the 1st Respondent was being pressed by the Factories Department to comply with the provisions of Section 49 of the Factories Act read with Rule 3 of the Maharashtra Welfare Officers (Duties, Qualifications and Conditions of Service) Rules, 1966. Consequently, the 1st Respondent called upon the petitioner to obtain relaxation of the minimum qualification from the Government of Maharashtra. Despite his efforts, the petitioner was unable to obtain such relaxation. Finally, the 1st Respondent served a show cause notice on the petitioner and called upon him to explain why he should not be discharged from service fir not holding to requisite minimum qualification prescribed under the statute. By an order dated 21st January, 1984, the petitioner was discharged from service. The reason given in the said order was that the Petitioner did not possess the minimum requisite qualification prescribed under the law. Soon after the Petitioner''s service was terminated, the 1st Respondent appointed another person in his place who possessed the requisite qualification under the Rules. On 10th October 1984 the Government of Maharashtra addressed a letter to the petitioner informing him that his application for relaxation of the minimum qualification was still under consideration. As a matter of fact, the actual relaxation of the minimum qualification was communicated by the letter dated 12th November 1984 by which time the petitioner''s service had already been terminated.
The Petitioner moved Complaint (ULP) No. 98 of 1984 before the Labour Court, Sangli, under the Act and alleged that the termination of his service amounted to an unfair labour practice under Item 1 of Schedule IV of the Act. The Labour Court tried the Complaint and by its order dated 22nd February 1988 dismissed the complaint by holding that it was not the responsibility of the 1st Respondent to obtain relaxation of the minimum qualification for holding the post of Welfare Officer and it was not the responsibility of the Petitioner, which he had failed to discharge and, therefore, the termination of his service for failure to hold the minimum requisite qualification under the Rules did not amount to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947, and consequently, there was no violation of the provisions of section 25F of the Industrial Disputes Act, 1947.
Being aggrieved by the dismissal of his Complaint, the Petitioner moved the Industrial Court, Kholapur, by his Revision Application (ULP) No. 18 of 1988. The Industrial Court was of the view that, as a matter of fact, the Petitioner was not qualified for the post as he did not possess the qualification prescribed under Rule 3 of the maharashtra Welfare Officers (Duties, Qualification and Conditions of Service) Rules, 1966. It also took the view that, under the circumstances, the termination of his service could not be held bad and the fact that relaxation of the minimum qualifications was made in October 1984 would not render the order of discharge made on 21st January 1984, bad, illegal or improper in any way, since the 1st Respondent''s management had given sufficient time and opportunity to the Petitioner to do the needful and the petitioner had failed. Despite this reasoning, the Industrial Court was of the view that the termination of service of the petitioner on the ground of his not holding the requisite minimum qualification, amounted to retrenchment within the meaning of Section 2(00) of the Industrial Disputes Act, 1947. As admittedly the provisions of Section 25F had not been complied with, the retrenchment was held to be illegal, though very much justified. In his view of the matter, the Industrial Court directed payment of full back wages upto the date of its order and directed further payment of retrenchment compensation and notice pay to the Petitioner on the footing as if he had been retrenched on the date of its order which was made on 7th August 1989. It is not in dispute that all the monetary benefits flowing from the order of the Industrial Court dated 7th August 1989 have been fully paid to the petitioner. Being aggrieved by the refusal of the relief of reinstatement, the Petitioner is before this Court by the present writ petition.
Mr. S. M. Dharap, learned Advocate for the Petitioner, contends that the Industrial Court erred in holding that the termination of the petitioner''s service was justified. According to him, the 1st Respondent showed undue haste in terminating the petitioner''s service although the issue as to relaxation of qualifications was still under consideration of the Government as indicated in the Government''s letter dated 10th October 1984. In these circumstances, be contends that the termination was malafide for ulterior purposes, and done in abrupt haste. It is not possible to accept this contention. In the first place, I am not even satisfied that under the provision of the relevant rules, there was power in the Government to relax the qualifications in individual cases. Relevant Rule 3 of the Maharashtra Welfare Officers (Duties, Qualifications and Conditions of Service) Rules, 1966, reads as under :-
"3. Qualifications and disqualifications for appointment as Welfare Officers, etc. - (A) A person shall not be eligible for appointment as a Welfare Officer, Additional Welfare Officer or Assistant Welfare Officer, unless he, -
(1) has obtained a degree or diploma in social science recognised by the State Government in this behalf, has Qualified at a viva-voce test conducted, by the Commissioner of Labour, Bombay, as provided in rule 3A; and has got himself enrolled in the list maintained by the Commissioner of Labour, Bombay under Rule 5; and
(b) has adequate knowledge of Marathi language.
(2) No person who is directly or indirectly interested in any factory or in any patent or machinery connected with it shall be appointed as a Welfare Officer, Additional Welfare Officer or assistant Welfare Officer or shall be allowed to hold such office after he becomes so interested in the factory.
Explanation - For the purpose of this sub-rule, any person holding less than two per cent of the shares of a company owing the factory shall not be deemed to be directly or indirectly interested in such factory.
(2) The State Government may, subject to such conditions as it may specify, relax all or any of the qualifications laid down in this rule in respect of any class of persons.
In may view, the only power of relaxation available to the State Government under sub-rule (3) of this Rule is to Relax all or any of the qualifications laid down in the rule "in respect of any class of persons". The power of relaxation would be available only if it is exercised in respect of a class of persons and not in respect of any specific individual. The whole exercise of addressing letters to the State Government on the issue of relaxation was meaningless, in my view. In any event, the provisions of Section 49 read with the applicable Rule required the 1st Respondent to employ only a welfare Officer who was qualified in accordance with the Rules. There is no provision either in the statute or under the rule for a tentative employment of an unqualified person and to have the employment regularised thereafter. From the word go, the employment of the the Petitioner was therefore contrary to the provision of the Factories Act, 1948 and, there fore, if the 1st Respondent, under persistent pressure from the Inspectorate of Factories put and end to its illegal action. I find it difficult to accept that such action on their part was improper or unjustified in any manner. No person can be compelled to continue an illegal act, nor can his act of giving up the illegality of a course of action amount to illegality or impropriety on his part. For the adjudicated illegality of the action, the Industrial court has given more than adequate relief in the matter and nothing needs to be done.
In the circumstances, I see no substance in the petition, which deserves to be and is hereby dismissed. Rule discharged. However there shall be no order as to costs.
Issuance of certified copy of this judgment is expedited.