Engineering And Metal Workers ... vs Commissioner Of Labour And Ors.
2003 Latest Caselaw 113 Bom

JUDGMENT

D.B. Bhosale, J.

1. The short question that arises for consideration in this writ petition is whether respondent No. 2 - the Joint Commissioner of Labour, who was holding the charge of the Commissioner of Labour at the relevant time, had authority in law to perform all functions and duties, including quasi-judicial functions of the Commissioner of Labour, and the impugned order passed by him under Section 25-O of the Industrial Disputes Act (for short, "the Act") is non est and void for want of such authority.

2. The petitioner is a registered union under the Trade Unions Act and represents all the 400 employees who were employed by respondent-company. Respondent No. 1 is the Commissioner of Labour and is the specified authority under Section 25-O of the Act. Respondent No. 2 is the Joint Commissioner of Labour who has passed the impugned order in the absence of the Commissioner of Labour while he was holding the charge of the said post at the relevant time. The petitioner, in the present writ petition, has challenged the order dated September 5, 2002 passed by respondent No. 2 the Joint Commissioner of Labour on diverse grounds. However, Mr. Bukhari, learned counsel for the petitioner, has confined his arguments only on the aforesaid question involved in the instant writ petition. In view thereof, I am addressing only on the question quoted in the first paragraph of the judgment. During the course of the arguments, a grievance was also made by Mr. Bukhari, learned counsel for the petitioner, that the application of the respondent-company under Section 25-O was fully heard by respondent No. 1, however, respondent No. 2 has passed the impugned order without hearing the arguments of the parties. However, in rejoinder, Mr. Bukhari fairly gave up that contention after taking inspection of the original file which was indicating that the hearing did take place before respondent No. 2 who passed the impugned order.

3. The factual matrix, material and necessary to determine the questions involved, in the present writ petition, reveals as under:

Respondent-company had employed 400 employees including 365 employees at its factory at Mankhurd and 35 in the head office at Tardeo, Respondent-company submitted closure application under Section 25-O initially dated June 18, 2002 which was subsequently changed to July 9, 2002. It is the case of the petitioner that though there were 365 employees working at the factory, names ofonly 340 employees were given in the closure application by respondent-company. Along with the closure application, the respondent-company had annexed copies of audited accounts for the periods 1997-98, 1998-99 and 1999-2000. The audited accounts for the periods during 2000-01 and 2001-02 were neither annexed nor produced before the Commissioner of Labour. The petitioner filed its reply to the closure application on June 27, 2002. It was pointed out, inter alia that there were many discrepancies in the closure application. The factual discrepancies reflected in the writ petition need not be referred to for answering the issues involved. Initial hearing was held before Mr. N.J. Gajbhiye, Commissioner of Labour. It is the case of the petitioner that number of documents were filed before Mr. Gajbhiye and detailed arguments were also heard by him. Though the arguments were completed on August 10, 2002, hearing was adjourned to August 17, 2002 which was again adjourned to August 19, 2002, and on that date instead of Mr. Gajbhiye hearing the parties, Mr. M.B. Gajare, the second respondent informed the parties that Mr. Gajbhiye was indisposed and was on leave and, therefore, he would be hearing and passing orders on the application of respondent-company under Section 25-O of the Act Accordingly, the application was heard by second respondent who passed the impugned order dated September 5, 2002. The petitioner has taken exception to the said order on the ground that second respondent had no legal authority and/or he was not delegated to hear the application under Section 25-O of the Act and, in view thereof, the order passed by the second respondent is null and void abinitio and ought to be quashed and set aside.

4. One Kashinath Tukaram Satkar, Under Secretary, Government of Maharashtra, Industries, Energy and Labour Department, has filed an affidavit making the stand of respondent Nos. 1 to 3 clear. It appears from the said affidavit that the Commissioner of Labour, Shri Gajbhiye had informed the Joint Commissioner of Labour on August 12, 2002 that he was unwell and was proceeding on sick leave for 15 days. The Deputy Commissioner of Labour vide his letter dated August 13, 2002, informed the Principal Secretary of the Industries, Energy and Labour Department that the Commissioner of Labour had gone on sick leave, and sought orders in respect of handing over the charge of the Commissioner of Labour to the Joint Commissioner of Labour. The Principal Secretary, Labour Department, appears to have made an endorsement on the letter dated August 13, 2002 itself to the effect that Mr. Gajare, the Joint Commissioner of Labour would hold the charge of the Commissioner of Labour in the absence of Mr. Gajbhiye. It is also stated in the affidavit that instructions were given on August 12, 2002 itself to Mr. Gajare to hold the charge of the Commissioner of Labour. It is further stated that respondent No. 2 was holding the charge of the Commissioner of Labour and, therefore, was legally authorised to hear and decide the application of the respondent company under Section 25-O of the Act. In other words, respondent No. 2 had been validly authorised to hold the charge of the post of the Commissioner of Labour and, therefore, it cannot be said that he has usurped the said power.

5. The petitioner has also brought on record and placed heavy reliance on the order dated October 1, 2002, passed by S. rADHAKRISHNAN, J. in Writ Petition No. 2447 of 2002 -- NOCIL Employees' Union v. Commissioner of Labour and Ors. According to the petitioner, the issue involved in that writ petition was similar to the issues involved in the present writ petition. In that writ petition also, the legal authority of Mr. Gajare was under challenge. Paragraphs 3, 4 and 5 of the order dated October 1, 2002 reads thus:

"3. After hearing the learned counsel for the parties for sometime, all the parties are agreeable for setting aside the impugned order dated August 30, 2002, being Exhibit-K to the petition, and all the parties are also agreeable that no reasons be recorded for the same.

4. Similarly, all the parties are agreeable for quashing and setting aside the notice which has been published in the Indian Express dated September 23, 2002 by the respondent No. 4, being Exhibit 1 to the affidavit of Mr. P.H. Kutumbe dated October 1, 2002, and all the parties are also agreeable that no reasons be recorded for the same.

5. All the parties are also agreeable that the matter can be heard by Mr. N. J. Gajbhiye, the Commissioner of Labour, Mumbai, afresh."

6. I will deal with the contentions of Mr. Bukhari, learned counsel for the petitioner and learned counsel for the respondents in respect of the aforesaid order at an appropriate stage. It is in this backdrop, I heard the learned counsel for the parties at length, perused the writ petition and documents annexed thereto, affidavits placed on record and several judgments cited and relied upon by the parties.

7. Mr. Bukhari, learned counsel for the petitioner, after referring several provisions of the Act and Sections 25-O, 39 and the definition of "appropriate Government" in particular submitted that the second respondent had not. been delegated powers under Section 25-O of the Act by the "appropriate Government" contemplated under Section 39 of the Act. Section 39 of the Act clearly mandates that the power exercisable under the Act shall be exercised by an authority as specified in the notification. It is submitted that the notification dated August 17, 1994 issued under Section 39 delegates power exercisable by the appropriate Government to the Commissioner of Labour, and none else. Mr. Gajare, respondent No. 2, who was not the Commissioner of Labour was, therefore, not empowered to hear application under Section 25-O of the Act. Mr. Bukhari further submitted that even if it is assumed that Mr. Gajare was legally authorised to perform functions of the Labour Commissioner in his absence, he could have performed only administrative functions and not quasi-judicial Junctions inasmuch as there could not be delegation of quasi-judicial functions. There is no dispute in the present writ petition that functions of the Commissioner of Labour under Section 25-O are quasi-judicial in nature. In support of his submission, Mr. Bukhari placed reliance upon the judgments in Radheshyam Khare and Anr. v. State of M.P. and Ors. ; Bachhittar Singh v. State of Punjab and Anr., ; Marathwada University v. Sheshrao Balwant Rao Chavan and Ajaib Singh v. Gurbachan Singh and Ors. AIR 1965 SC 1619. Mr. Bukhari submitted that the Principal Secretary, though had an authority to direct respondent No. 2 to hold charge of the post of the Commissioner of Labour, during his leave period, no such order delegating power to respondent No. 2 was ever issued. He invited my attention to the letter dated August 13, 2002 and submitted that the endorsement made by the Principal Secretary, Labour on the said letter by no stretch of imagination could be construed as an order within the meaning of Article 166 of the Constitution of India. He submitted that merely writing something on the letter dated August 13, 2002, does not amount to an order. The order has to be expressed in the name of the Governor as required by Clause (1) of Article 166 and then it has to be communicated. In support, he placed reliance upon the case of Bachhitar Singh (supra). He further submitted that even if it is assumed that the endorsement made on the letter dated August 13, 2002 was an order, unless notification under Section 39 of the Act is issued to that effect, pursuant to the said endorsement and published in the official gazette, it cannot be construed as valid order. He placed reliance upon the judgment of the Apex Court in the case of Collector of Central Excise v. New Tobacco Company . In support of his contention that the quasi-judicial functions cannot be delegated, he placed reliance upon the judgment in the case of Barnard v. National Dock Labour Board, 1953 (2) QB 18. In so far as the factual aspect is concerned, Mr. Bukhari submitted that on August 8, 2002 both parties argued the matter before Mr. Gajbhiye. However, since the respondent company filed a letter from Union Bank of India, the Commissioner of Labour adjourned the hearing to enable both the parties to reply to the said letter. Accordingly the hearing was adjourned to August 17, 2002. The petitioner then received a letter dated August 13, 2002 from the Commissioner of Labour stating that the hearing fixed on August 17, 2002 had been adjourned to August 19, 2002 at 11.30 a.m. No reasons for the said adjournment were given. On August 19, 2002 at the hearing for the first time the petitioner came to know that Mr. Gajbhiye was on leave and in his place Mr. M.B. Gajare would be hearing the application for closure. Though Mr. Bukhari, in rejoinder has stated that though the hearing did take place on August 19, 2002, the petitioner had not gone to the office of the Commissioner of Labour for arguing the matter and they were forced by the circumstances to reargue the matter before Mr. Gajare on that date. In short, Mr. Bukhari submitted that the notification dated August 17, 1994 was issued by the appropriate Government, under Section 39 of the Act, delegating powers to hear the applications under Sections 25-N and 25-O to the Commissioner of Labour. Such notification is required to be signed in the name of the Governor of Maharashtra and published in the official gazette. The aforesaid procedure contemplated under Section 39 had not been complied with while delegating powers to Mr. Gajare. The noting or endorsement made by the Principal Secretary (Labour) on the letter dated August 13, 2002 cannot be construed as an order within the meaning of Section 39 of the Act. In view thereof, the Joint Commissioner of Labour cannot be said to have been delegated powers to hear application under Section 25-O and hence the impugned order passed by him is non est. Mr. Bukhari also submitted that in a case where there is complete lack of jurisdiction in the office or authority to take action impugned, a writ petition under Article 226 would lie. He placed reliance upon the Judgment of the Apex Court in the case of A.V. Venkateswaran v. Ramchand Sobharaj Wadhwani, . He further placed reliance upon the judgment of the Apex Court in the case of State Trading Corporation of India v. State of Mysore, in support of his contention that where a quasi-judicial authority acts without authority, writ would lie. Further, in support of his contention that principles of acquiescence, waiver or estoppel will not be applicable in cases where the Court, quasi-judicial authority commits error, he placed reliance upon the judgment in the case of Devidayal Rolling Mills v. Prakash Chimanlal Parekh and Ors. .

8. Mr. C.U. Singh, learned counsel for the respondents, in opposition, submitted that the delegation of powers has been effected under Section 39 of the Act in favour of the Commissioner of Labour and not in favour of any particular person. In other words, this is not a delegation in the nature of persona designata but in favour of an office and, therefore, whoever lawfully holds such office at any time ipso facto and automatically becomes the Commissioner of Labour for the time being and is therefore the lawful delegate of the State Government under Section 39. He submitted that it is usual practice that if the Commissioner of Labour goes on leave, charge of the said post is always given to the Joint Commissioner of Labour and the procedure followed for that purpose cannot be faulted merely because the order was not communicated to the petitioner. He submitted that the endorsement made by the Principal Secretary, Labour, on the letter dated August 13, 2002 was an order by which the second respondent was legally authorised to hold charge of the Commissioner of Labour in his absence. There is nothing to preclude or prevent the Joint Commissioner of Labour from lawfully holding the charge or the office of the Commissioner of Labour and carrying out all duties and functions of the said office including exercise of powers as a delegate of the State Government under Section 39 of the Act. In support of his submission he placed reliance upon the judgment of the Apex Court in the cases of Gopalji Khanna v. Allahabad Bank and Ors., , Central Talkies Ltd., Kanpur v. Dwarka Prasad, and Beopar Sahayak (P) Ltd. and Ors. v. Vishwa Nath and Ors. . He further placed reliance on the provisions of Section 17 of the Bombay General Clauses Act, 1886 and Section 19 of the General Clauses Act, 1897 which in his submission make it clear that where any officer of office is invested with powers or functions under any State or Central Act, such powers and functions can be validily exercised by any person who holds such post of officer or office from time to time. In support he placed reliance upon the judgment of the Apex Court in the case of Ram Kishan v. Union of India and Ors. and Janardhan v. State of Maharashtra . In short, he submitted that the respondent No. 2 who passed the impugned order, he did that in his capacity as the Commissioner of Labour since he was legally holding the charges of that post and, in view thereof, issuance of independent notification under Section 39 was not necessary. Section 39 notification does not contemplate authorisation in the name of any person inasmuch as the notification issued in the present case was in favour of an office and not in the nature of "persona designata". In reply to the argument advanced by Mr. Bukhari, learned counsel for the petitioner in respect of Article 166 of the Constitution of India, Mr. C.U. Singh submitted that non compliance with the requirements of Article 166 would not vitiate the order or does not render the order nullity. It is settled law that the provisions of Article 166 are only directory and not mandatory in character, and if they are not complied with, it cannot be established as a question of fact that the impugned order was issued in fact by the State Government or by the Governor. Mr. Singh in support of his submission placed reliance upon the judgment of the Apex Court in the case of Dattatraya Moreshwar Pangarkar v. State of Bombay and Ors. , State Government Houseless Harijan Employees' Association v. State of Karnataka and Ors. AIR 2001 SC 437 : 2001 (1) SCC 610 and R. Chitralekha and Ors. v. State of Mysore and Ors., . Mr. Singh further submitted that keeping in view the conduct of the petitioner who kept mum for quite some time after the impugned order till filing of the U.L.P. complaint and the review application, the petitioner is estopped from challenging the impugned order passed by respondent No. 2. According to Mr. Singh, the petitioner has disentitled to seek relief in the present writ petition under Section 226 of the Constitution of India inasmuch as their conduct is blameworthy because of laches, undue delay, acquiescence, waiver etc. In support, he placed reliance upon the judgment of the Apex Court in the case of State of Maharashtra v. Digambar and Suneeta Aggarwal v. State of Haryana and Ors. . Though Mr. Singh made his submission on the maintainability of the writ petition on the ground that the petitioner-union has invoked its alternative remedy by filing the review application on September 19, 2002 before the Commissioner of Labour under Section 25-O(5) of the Act, he did not press that ground seriously. He also submitted that the petitioner union has invoked jurisdiction of the Industrial Court under Sections 28 and 30 of the MRTU & PULP Act by filing complaint (ULP) No. 837 of 2002 and objected to the maintainability of the writ petition. However, he did not seriously press that ground also. As a matter of fact, prima facie, I find that the subject matter of the present writ petition, the review application and ULP complaint are different, however I refrain from entering into that controversy since the learned counsel for the parties made submissions at length on the main issue involved in the present writ petition, requiring me to decide the same.

9. Before considering the merits of the case, it would be advantageous to advert to the relevant provisions of the Act for better appreciation of the arguments advanced by learned counsel for the parties. Keeping in view the following relevant and material dates, I would proceed to consider the provisions of Sections 25-O, 39 and 2(a)(ii). The application for closure under Section 25-O in the present case, was filed by the respondent company initially on June 18, 2002 which was subsequently changed to July 9, 2002. The impugned order of closure was passed on September 5, 2002. The notification under Section 39 was issued by the State Government on August 17, 1994. Section 25-O lays down a procedure for closing down an undertaking. Under this provision, if an employer who intends to close down an undertaking of an industrial establishment, in which not less than 100 workmen were employed on an average per working day for the preceding 12 months, shall, in the prescribed manner, apply, for prior permission at least 90 days before the date on which the intended closure is to become effective, to the appropriate Government stating clearly the reasons for the intended closure of the undertaking and a copy of such application shall also be served simultaneously on the representatives of the workmen in the prescribed manner. The appropriate Government, on receipt of an application, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen and the persons interested in such closure may, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen. Sub-section (3) of Section 25-O provides that where an application has been made under Sub-section (1) and the appropriate Government does not communicate the order granting or refusing permission to the employer within a period of 60 days from the date on which such application is made, the permission applied; for shall be deemed to have been granted on the expiration of the said period of 60 days. An order of the appropriate Government granting or refusing to grant permission shall remain in force for one year from the date of such order. Sub-section (5) of Section 25-O empowers the appropriate Government to review its order granting or refusing to grant permission under Sub-section (2) or refer the matter to a Tribunal for adjudication. Clause (a) of Section 2 defines "appropriate Government" which, for our purpose, means the State Government. Section 39 of the Act deals with delegation of powers. Section 39 reads thus:

"39. Delegation of powers. - The appropriate Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act or rules made thereunder shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also,

(a) where the appropriate Government is the Central Government, by such officer or authority subordinate to the Central Government or by the State Government or by such officer or authority subordinate to the State Government, as may be specified in the notification; and

(b) where the appropriate authority is a State Government, by such officer or authority subordinate to the State Government as may be specified in the notification."

Under this provision, the appropriate Government is empowered to retain all powers exercisable under this Act with it or to delegate such power to such officer or authority subordinate to the State Government as may be specified in the notification. In exercise of the powers under Section 39, the State Government, by notification dated August 17, 1994, has delegated powers exercisable by it under Sections 25-N and 25-O of the Act to the Commissioner of Labour. Relevant notification dated August 17, 1994 reads thus:

"Industries, Energy and Labour Department, Mantralaya, Bombay 400 032, dated August 17, 1994.

Industrial Disputes Act, 1947.

No. IDA, 494/CR-329/LAB-10. In exercise of the powers conferred by Section 39 of the Industrial Disputes Act, 1947 (14 of 1947) and in supersession of the Government Notification, Industries, Energy and Labour Department, No. OMM.1088/2697/Lab-2, dated August 16, 1988, the Government of Maharashtra hereby directs that the powers exercisable by it under Sections 25-N and 25-O of the said Act shall also be exercised by the Commissioner of Labour, Bombay.

By order and in the name of the Government of Maharashtra

B.J. Pol.

Under Secretary to Government."

10. The notification issued by the State Government empowers the Commissioner of Labour, Bombay, to exercise all powers under Sections 25-N and 25-O of the Act. The Government, however, has also retained the powers exercisable under Sections 25-N and 25-O of the Act. Plain reading of the notification would show that the powers are delegated to the Commissioner of Labour and not in favour of any individual or any particular person. It is thus clear that the Commissioner of Labour exercises the powers, under notification dated August 17, 1994, by reason of his posting as the Commissioner of Labour. The notification is a general notification and, therefore, whosoever holds the post of the Commissioner of Labour, automatically becomes specified authority for exercising the powers, exercisable by the specified authority, under the said notification. What is, therefore, necessary is only that such person should hold the post of Commissioner of Labour lawfully. Looking to the provisions of Section 39 and the notification issued thereunder, it is clear that it is one time delegation in favour of the Commissioner of Labour, Maharashtra. The person, therefore, holding the post of Commissioner of Labour lawfully ipso facto and automatically becomes the specified authority for the time being and lawful delegate of the State Government under Section 39. The observations made by the Apex Court in Central Talkies Ltd., Kanpur (supra) while rejecting the argument that the District Magistrate was a persona designata are sufficient enough for our guidance. The relevant portion of paragraph 9 of the judgment reads as under;

"9-A persona designata is "a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character" (See OSBORN'S CONCISE LAW DICTIONARY, 4th Edn. P.253). In the words of SCHWABE, C.J. in Parthasaradhi Naidu v. Koteswara Rao, AIR 1924 Mad. 561 (FB) personae designatae are "persons selected to act in their private capacity and not in their capacity as Judges". The same consideration applies also to a well known officer like the District Magistrate named by virtue of his office, and whose powers the Additional District Magistrate can also exercise and who can create other officers equal to himself for the purposes of the Eviction Act".

It is thus clear that by no stretch of imagination, it could be said that the Commissioner of Labour, who was delegated powers under notification dated August 17, 1994 was a ''persona designata". Mr. Gajbhiye was not enjoying the powers under the said notification in his private capacity but in his capacity as the Commissioner of Labour. Therefore, whosoever holds that post "lawfully" he automatically becomes a specified authority.

11. The next question, therefore, that falls for consideration is whether the Joint Commissioner of Labour who was holding the charge of the Commissioner of Labour at the relevant time, was holding that post lawfully. Mr. Kashinath Tukaram Satkar, Under Secretary to Government of Maharashtra, Industries, Energy and Labour Department in his affidavit dated October 25, 2002, in paragraphs 4, 5 and 6 in particular has stated the circumstances in which the second respondent in the absence of the first respondent was given the charge of the post of the Commissioner of Labour, it would be more appropriate to quote three paragraphs from the affidavit of Mr. Kashinath Tukaram Satkar. The relevant paragraphs read thus:

"4. I say that the Commissioner of Labour Shri Gajbhiye informed the Joint Commissioner of Labour on August 12, 2002 that he was unwell and was proceeding on sick leave and that the medical certificate would follow. The Commissioner of Labour further informed that he would not be able to resume for atleast 15 days. I say that as per the practice, the Joint Commissioner of Labour, in the absence of the Commissioner of Labour, holds the charge of the said post of Commissioner of Labour. I say that the Deputy Commissioner of Labour vide his letter dated August 13, 2002 informed my department that the Commissioner of Labour had gone on sick leave and he further informed that orders for his holding the said charge of Commissioner of Labour be issued.

5. I say that looking to the various administrative duties as well as quasi-judicial functions which the Commissioner of Labour has to carry out under various labour legislations, the Principal Secretary, Labour Department, have made an endorsement on the file on August 13, 2002 itself that Shri Gajare, will hold charge of the post of Commissioner of Labour. Accordingly, the Joint Commissioner of Labour was exercising the powers, duties and functions of the said Commissioner of Labour on and from August 12, 2002 till the date the Commissioner of Labour resumes, i. e. on September 7, 2002.

6. I say that the power to hear applications and grant permissions under Section 25-O of the said Act has been delegated to the Commissioner of Labour vide Notification dated August 17, 1994 which is annexed to the petition. I say that the said delegation is under Section 39 of the Industrial Disputes Act. I say that it is pertinent to note that the power is delegated to the office and not to the person by name. I say that the said power being delegated to the said office, the Deputy Commissioner of Labour, who was holding charge of the said office during the absence of the Commissioner of Labour has, in exercise of the said power, decided the application of the respondent No. 4 company under Section 25-O of the said Act. I say that the Joint Commissioner has been validly authorised to hold the charge of the said post of Commissioner of Labour and it, therefore, cannot be said that the Joint Commissioner has usurped the said power as alleged by the petitioner or that the said Joint Commissioner was not empowered to exercise the said power."

12. It is, thus, clear that the Commissioner of Labour, who was unwell, proceeded on sick leave for a period of 15 days commencing from August 12, 2002. This was communicated on telephone to the Principal Secretary on the same day. The Deputy Commissioner of Labour vide his letter dated August 13, 2002 also informed the Principal Secretary, Labour Department that the Commissioner of Labour had gone on sick leave and sought further orders regarding handing over of the charge of the Commissioner of Labour in favour of the Joint Commissioner of Labour. When an important post, which is delegated with important administrative as well as quasi-judicial function becomes vacant, temporary or permanent, cannot be kept vacant and bring all the functions of that office to standstill. Another aspect requires attention, in the present case, was that under Section 25-O(3), where an application for closure has been made under Sub-section (1) and the order granting or refusing to grant permission to the employer is not communicated within a period of sixty days from the date on which such application is made, the permission applied for shall, be deemed to have been granted on the expiration of the said period of sixty days. The application, in the instant petition under Section 25-O was made by the respondent company on July 9, 2002. The sixty days were expiring some time around September 9, 2002. Respondent No. 1, Commissioner of Labour, went on leave on August 12, 2002 and he resumed on September 7, 2002. The impugned order was passed on September 5, 2002. There was hardly any time to pass order on the application under Section 25-O filed by respondent-company, particularly when it was not certain when Mr. Gajbhiye would resume. Though Mr. Gajbhiye on August 12, 2002 had gone on leave for 15 days, he in fact resumed on September 7, 2002. Had the order, on the application under Section 25-O not been passed, the deeming provision would have come into force. The Principal Secretary, Labour Department, in view thereof, appeared to have made endorsement on the letter, dated August 13, 2002 itself directing Mr. Gajare, the Joint Commissioner of Labour, to hold the charge of the post of the Commissioner of Labour. Accordingly, Mr. Gajare did take charge and commenced exercising the powers, duties and functions of the Commissioner of Labour from August 12, 2002. There is no dispute that the Principal Secretary had powers to pass such order and direct the Joint Commissioner of Labour to take charge of the post of the Commissioner of Labour in his absence. There does not appear to be a dispute that by such order the Administrative powers could be delegated or directed to be taken charge of. However, according to the petitioner, the quasi-judicial powers cannot be performed by the officer of lower rank in the absence of the Commissioner of Labour pursuant to such order. In my view, if it could be shown that respondent No. 2 was holding charge of the Commissioner of Labour lawfully and was in that capacity executing quasi-judicial function, that would be sufficient to reject the aforesaid contention of the petitioner.

13. Mr. Bukhari strenuously urged that by no stretch of imagination, the endorsement made by the Principal Secretary on the letter dated August 13, 2002 could be construed as the valid order directing the Joint Commissioner of Labour to hold charge of the Commissioner of Labour. It could be, at the most, an endorsement which required further formality of issuance of an order/ notification by the General Administration Department. He further submitted that in the present case, in. fact, the Principal Secretary forwarded the file for further action to the General Administration Department, however, the General Administration Department did not issue any order pursuant to the endorsement made by the Principle Secretary. Mr. Sawant, learned Government Pleader, however, submitted that the endorsement made by the Principal Secretary, Labour Department itself was an order, which was passed and communicated to Mr. Gajare, the Joint Commissioner of Labour. Mr. Sawant further stated that this is an usual practice of the department in case of IAS officers, to direct the subordinate officer to hold charge in their absence. He submitted that it cannot be said that the endorsement made on the letter dated August 13, 2002 was not an order. Mr. Sawant further submitted that if the submission of Mr. Bukhari, learned counsel for the petitioner is accepted, it would be extremely difficult for the Government machinery to function in such situation. It would not be proper to expect subordinate officer to wait till the formal order is in fact issued and communicated to him. In my view, passing of an order and its communication to the concerned officer directing him to hold charge, particularly when there is no dispute regarding the qualification of subordinate officer who is holding charge of the Commissioner of Labour is sufficient compliance. The Commissioner of Labour as well as the Joint Commissioner of Labour do not hold any special qualification nor do they have any special or quasi-judicial training. Thus, it is clear that where a superior officer has been authorised to perform some duties under the Act or a notification, the subordinate or officer who has been lawfully authorised to perform those duties in the place of his superior, is equally empowered to perform the duties and functions, including quasi- judicial functions, while holding the charge of his superior officer. The Apex Court in Ram Kishan (supra) has made the aforesaid legal position very clear.

14. I would also like to examine as to whether the endorsement made by the Principal Secretary on the letter dated August 13, 2002 could be regarded as an order of the State Government within the meaning of Article 166 of the Constitution of India. Article 166(1) of the Constitution requires that all executive actions of the Government or a State shall be expressed in the name of the Governor. Clause (2) of Article 166 provides for the authentication of orders and other instruments made and executed in the name of the Governor. Clause (3) of that Article enables the Governor to make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among the Ministers of the said business. Keeping this in view, it will have to be examined whether the order of the Principal Secretary made on the aforesaid letter could be regarded as order within the meaning of Article 166.

15. In Bachhittar Singh (supra), relied upon by Mr. Bukhari, learned counsel for the petitioner, in paragraph 9 of the report, the Supreme Court held thus:

"(9) The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by Clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones."

Two conditions are thus necessary to be complied with. Firstly that order has to be expressed in the name of Governor as required by Clause (1) of Article 166 and then it has to be communicated to the person concerned. In the present case, the second condition stands complied with inasmuch as it was communicated to the second respondent and in fact he started acting upon it from August 12, 2002. Therefore, I am required to examine that if the first condition is not complied with, the order and action taken in pursuance thereof could be said to be null and void. However, before I proceed, it would be necessary to state in what circumstances the Apex Court in the case of Bachhittar Singh made the aforesaid observation in paragraph 9. In that case, the Revenue Minister of Pepsu State, on an advance copy of the appeal, called for the file on the last day before merger with Punjab and made certain notings on the file. He noted that the charges proved were very serious and this evil must be put down with a strong hand. However, he noted that since the appellant was a displaced person, he should be reverted instead of being dismissed, However, it is clear from the facts of that case that the aforesaid notings were not communicated to the concerned person who ultimately came to be dismissed. Subsequently, the appeal was considered by the Chief Minister of Punjab, who rejected it and his order was duly communicated to the appellant. The appellant's challenge was based on the contention that the file noting of the Revenue Minister of Pepsu was binding on the Government. It was in this context that the Supreme Court held that in order to bind the Government, the order should have been communicated to the person affected, and should have been expressed in the manner laid down in Article 166. The Supreme Court in Datatraya Moreshwar (supra) while dealing with Article 166 held that "strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that Article are not complied with, the resulting immunity cannot be claimed by the State. This however does not vitiate the order itself. What is necessary to prove on record is the decision taken by the appropriate Government and it was communicated to the person concerned. Omission to comply with the conditions of Article 166, would not render the action taken in pursuance of the order nullity. The relevant paragraph in Dattatraya Moreshwar (supra) reads thus:

"......... Learned Attorney-General then falls back upon the plea that an omission to make and authenticate an executive decision in the form mentioned in Article 166 does not make the decision itself illegal, for the provisions of that Article, like their counterpart in the Government of India Act, are merely directory and not mandatory as held in J.K. Gas Plant Manufacturing Co. (Rampur) Ltd, v. Emperor 1947 FCR 141 at page 154-9."

"In my opinion, this contention of the learned Attorney- General must prevail. It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those, entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done. The considerations which weighed with their Lordships of the Federal Court in the case referred to above in the matter of interpretation of Section 40(1) of the 9th Schedule to the Government of India Act, 1935 appear to me to apply with equal cogency to Article 166 of the Constitution. The fact that the old provisions have been split up into two clauses in Article 166 does not appear to me to make any difference in the meaning of the Article.

Strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of mat Article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself. The position, therefore, is that while the Preventive Detention Act requires an executive decision; call it an order or an executive action, for the confirmation of an order of detention under Section 11(1) that Act does not itself prescribe any particular form of expression of that executive decision. Article 166 directs all executive actions to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity. Therefore, all that the procedure established by law requires is that the appropriate Government must take a decision as to whether the detention order should be confirmed or not under Section 11(1). That such a decision has been in fact taken by the appropriate Government is amply proved on the record. Therefore, there has been, in the circumstances of this case, no breach of the procedure established by law and the present detention of the petitioner cannot be called in question."

The Supreme Court in State Govt. Houseless Harijan Employees' Association case (supra) has placed reliance upon the observations made in R. Chitralekha v. State of Mysore, , and held that it is a settled law that the provisions of Article 166 of the Constitution are only directory and not mandatory in character and if they are not complied with, it could be established as a question of fact that the impugned order was issued, in fact, by the State Government or by the Governor. In the present case, the authority of the principal Secretary who passed the order directing the second respondent to hold the charge of the Commissioner of Labour has not been challenged. It could not be disputed that such order in the form of endorsement was, in fact, passed on the letter and the same was also communicated to the person concerned who acted on the said order. In view thereof, even if it is assumed that in the present case, the order ought to have been issued in the name of Governor, lack of compliance of Article 166 would not render the order passed by respondent No. 2 pursuant thereof, nullity. In R. Chitralekha (supra), the Apex Court has held that if the conditions laid down in Article 166 had been complied with, the order could not have been called in question on the ground that it was not an order made by the Government. But it was settled law that the provisions of the Article were only directory and not mandatory in character. I have, therefore, no hesitation in holding that the endorsement made by the Principal Secretary on the letter dated August 13, 2002 was an order and it would not be rendered invalid or nullity for lack of strict compliance of Article 166. In my view, the order made in the form of an endorsement on the letter dated August 18, 2002 was express and authentic as provided in Article 166 and, therefore, it cannot be challenged on the ground that it was not issued by the Government. It is always open for the Government to satisfy the Court that in fact the order was passed by the Government or the Governor. The Government in its affidavit has categorically stated that respondent No. 2 was validly authorised to hold post of the Commissioner of Labour and, therefore, it cannot be said that the Joint Commissioner of Labour has usurped the said power as alleged by the petitioner or that the Joint Commissioner was not empowered to exercise the said order.

16. There is also another angle from which the matter needs to be considered. Mr. Gajbhiye was not appointed a specified authority as persona designata. He used to exercise powers of a specified authority by reason of his posting as the Commissioner of Labour. Mr. Gajare was directed by the order of the Principal Secretary, Labour, to hold charge of the Commissioner. As held earlier, he was lawfully authorised to perform all functions and duties of the Commissioner of Labour, including the functions delegated to the Commissioner under notification issued under Section 39 of the Act. The Joint Commissioner de facto, therefore, was not a mere usurper but one who held office under colour of lawful authority, even if his appointment was defective. Whatever be the defect of his title to the office, the orders pronounced, much less the order on application under Section 25-O of the Act, by him while holding the office of the Commissioner of Labour, have the same efficacy as orders pronounced and acts done by a Commissioner of Labour. This position of law is no more res integra and finds to have been settled by the Apex Court in several judgments, including in the case of Beopar Sahayak (P) Ltd. & Others (supra) reiterated in a catena of judgments of the Apex Court.

17. The next submission of Mr. Bukhari, learned counsel for the petitioner, that as to whether it could be said that the delegation of powers to respondent No. 2 by the Principal Secretary (Labour) was a delegation as contemplated under Section 39 of the Act. Plain reading of Section 39 of the Act and the notification issued thereunder, shows that it is one time delegation to the Commissioner of Labour and no fresh notification is necessary for delegating the powers of the Commissioner of Labour in his absence to the Joint Commissioner. The order of the Principal Secretary as the letter dated August 13, 2002, in my view, was sufficient to lawfully authorise the Joint Commissioner of Labour to hold the charge of the Commissioner of Labour. I have no hesitation in holding that respondent No. 2 was exercising the powers of the Commissioner of Labour, exercisable in pursuance of the notification issued under Section 39 and under the orders of the Government requiring him to hold the charge in the absence of the Commissioner of Labour.

18. This takes me to consider the provisions of Section 17 of the Bombay General Clauses Act, 1904. Section 17, in my view, makes it clear that where any officer or office invested with powers or functions under any State can be validly exercised by any person who holds such post of officer or office from time to time. Whether powers, duties and functions of the Commissioner of Labour can be validly exercised by the Joint Commissioner of Labour so long as he lawfully holds the charge of the post and/or office, is the question that requires consideration in the light of Section 17 of the Bombay General Clauses Act. The Apex Court in Janardhan (supra), while dealing with Section 17 of the Bombay General Clauses Act, 1904 in paragraph 18 of the report, held thus:

"18. The Bombay General Clauses Act, 1904, does not also define the expression "Commissioner of Police". Section 17 of that Act appears under the rubric "Powers and Functionaries" and reads as follows:

17(1) In any Bombay Act or Maharashtra Act made after the commencement of this Act it shall be sufficient for the purpose of indicating the application of a law to every person or number of persons for the time being executing the functions of an office, to mention the official title of the officer at present executing the functions, or that of the officer by whom the functions are commonly executed.

Sub-section (2) of the section specifically provides that the section applies also to all Bombay Acts made before the commencement of the Bombay General Clauses Act, 1904. It would therefore follow that Section 17(1) is applicable to the present controversy. Under Sub-section (1) of Section 17 it was therefore sufficient for the purpose of indicating the application of a law to every person "for the time being executing the functions of an office" to mention the official title of the officer "at present executing the functions". Accordingly it was sufficient to mention the "Commissioner of Police" by his official title for purposes of Section 6 of the Act as he was the functionary who was executing the functions referred to in the section at the time when the Act came into force. As Section 17 of the Bombay General Clauses Act deals with the substitution of functionaries, it enabled that functionary to discharge the function of the Commissioner of Police under Section 6(1) of the Act who was "for the time being executing the functions" of that office. In the words, as it was the Commissioner of Police who had the authority to issue the special warrant under Section 6(1) of the Act when it came into force, it would be permissible for the Assistant Commissioner of Police to be substituted for that functionary if it could be shown that it was he who was executing the -functions of the Commissioner of Police on the date of issue of the special warrant referred to above, i.e. on December 25, 1967."

Thus it is clear that Section 17 of the Bombay General Clauses Act deals with the substitution of functionaries, it enabled that functionary to discharge the functions of the Commissioner of Labour under Sections 25-N and 25-O of the Act, who was "for the time being executing the functions" of that office. In my opinion, therefore, under the provisions of Section 17 it would be permissible for the Joint Commissioner of Labour to be substituted for the Commissioner of Labour, who was on sick leave at the relevant time and pass impugned order under Section 25-O of the Act.

19. In Gopalji Khanna (supra), the Apex Court was considering almost similar situation. The short question that arose was whether the power of review available to the Chairman and Managing Director of the Allahabad Bank under Regulation 18 of the Allahabad Bank Officer Employees (Discipline and Appeal):

Regulations, 1976 could have been exercised by the Executive Director, who was entrusted with current charge of the duties of office of the Chairman and Managing Director. While dealing with the situation, in paragraphs 7 and 8 of the report, the Apex Court held thus 1996-II-LLJ-121 at p.p. 123, 124:

"7. With respect to the second contention, it was submitted by the learned counsel that the power of review is conferred by Regulation 18. Only the Chairman and Managing Director are specified as reviewing authorities. This statutory power, therefore, can be exercised by the Chairman and Managing Director only as they are the named authorities under the statutory provision and cannot be validly delegated to any subordinate authority. Shri Wadhwa, therefore, could not have validly exercised that power. There is no substance in this submission. It is really misconceived. Though the regulations have been framed in exercise of the powers conferred by Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, by the Board of Directors, they cannot be equated with a statute. What the Board of Directors have done by making those Regulations is to regulate the power of taking disciplinary action against the employees of the Bank. Moreover, this is not a case where the power of Chairman or the Managing Director came to be exercised by a subordinate official as a result of delegation of that power. Shri Wadhwa while exercising the power of review was really discharging the functions of Chairman and Managing Director as he was then placed in charge of those offices and was therefore entitled to perform all the duties and functions of those offices. He did not exercise that power on the basis that it was delegated to him. Therefore, the decisions in Barnard v. National Dock Labour Board, Krishna Kumar v. Divisional Asstt. Electrical Engineer and Marathwada University v. Seshrao Balwant Rao Chavan, relied upon by the learned counsel in support of his contention that statutory power can be exercised by the named authority only and cannot be further delegated, require no further consideration. So also, Ramakant Shripad Sinai Advalpalkar v. Union of India and State of Haryana v. S.M. Sharma cited by the learned counsel have no relevance. The question which arose for consideration in those cases was whether an officer who substantively holds a lower post and is asked to discharge the duties of a higher post can be considered as promoted to that higher post. This Court held that entrustment of current duties charge of a higher post does not amount to promotion and in such cases the person continues to hold his substantive lower post and only discharges the duties of higher post essentially as a stop- gap arrangement.

8. It was next submitted that when a person is entrusted with charge of current duties of a higher post, he can exercise only those powers and perform those functions which are available to the person holding the higher post under executive orders and not those which are conferred by statutory provisions. In support of this submission the learned counsel relied upon the decision of this Court in Ajaib Singh v. State of Punjab. In that case what had happened was that the Additional District Magistrate, Amritsar was invested with powers of a District Magistrate under Section 10(2) of the Code of Criminal Procedure, 1898 and was also put in charge of the office of the District Magistrate, Amritsar, who was transferred. No order appointing him as a District Magistrate under Section 10(1) was passed. While in charge of the office of the District Magistrate, he passed an order of detention under the Defence of India Act and Rules, 1962. That order was challenged on the ground that as the Additional District Magistrate was not appointed as District Magistrate under Section 10(1) he did not have the power to pass a detention order and, therefore, the order passed by him was without any authority of law and liable to be set aside. This Court after considering the relevant provisions of the Defence of India Act and Rules, 1962 and the drastic nature of the power and the consequences following from it, observed that the power of detention could only be exercised by the State Government or an officer or authority to whom it was delegated and that the said power could be delegated to an officer or authority who was not lower in rank than the District Magistrate. It was tben held that even though the Additional District Magistrate was exercising the powers of the District Magistrate on there being a vacancy in the office of the District Magistrate, he was still not the District Magistrate as he was not appointed as such under Section 10(1) of the Code and therefore, he had no power to pass the order of detention. Even though invested with the powers of a District Magistrate he did not become an officer of the rank of a District Magistrate. In this case we are not concerned with such a provision and therefore are not required to consider whether Executive Director of the Bank when entrusted with the charge of duties of the offices of Chairman and Managing Director became an officer of the rank of Chairman and Managing Director. Moreover the power of the employer to take disciplinary action against his employee including the power to review an order of penalty, has to be distinguished from the statutory power to detain a person. Therefore, on the basis of this decision it cannot be held that the Executive Director who was merely entrusted with the charge of duties of the offices of Chairman and Managing Director could not have exercised the power of reviewing the order of penalty passed by the disciplinary authority."

The Apex Court in the aforesaid paragraphs has considered the judgments relied upon by Mr. Bukhari in Barnard v. National Dock Labour Board 1953 1 All ER 1113, Marathwada University v. Seshrao Balwant Rao Chavan (supra), and Ajaib Singh v. State of Punjab (supra). Keeping in view the law laid down by the Apex Court in Gopalji Khanna (supra), it cannot be held that the second respondent who was entrusted with the charge of duties of the office of the Commissioner of Labour could not have exercised the power of the Commissioner of Labour conferred on him under Section 25-O of the Act. This position of law is further reiterated by the Apex Court in Ramkishan (supra). Where a superior officer has been authorised to perform some duties under an Act or a regulation, a subordinate or deputy officer lawfully performing those duties in the place of his superior is equally empowered to perform the duties of the office of the superior. In the present case, I have already observed that the second respondent was lawfully holding the post of the Commissioner of Labour and while doing so he performed the duties which were exercisable by the Commissioner of Labour. In view thereof, the powers exercised by respondent No. 2 under Section 25-O cannot be said to be null and void. The judgments of the Apex Court relied upon by the petitioner in the cases of Barnard and Marathwada University (supra) do not have any application to the facts of the present case. There has been only one delegation in this case, being a general delegation in favour of the Commissioner of Labour whosoever for the time being holds the charge of the post of the Commissioner of Labour, is entitled to exercise all powers and functions of the said post. There is nothing in Section 39 or in the delegation notification to suggest that the person holding charge of the post is not entitled to exercise the delegated powers thereunder. The proposition laid down in Barnard and Marathwada University that when the Act prescribes particular person or body to exercise power, it must be exercised only by that body and it cannot be exercised by others unless it is delegated. As a matter of fact, as observed earlier, there was no delegation of the powers to respondent No. 2 as contemplated under Section 39 of the Act. Respondent No. 2 had only been given the charge of the post of the Commissioner of Labour and pursuant thereto respondent No. 2 stepped into the shoes of the Commissioner of Labour to perform all functions including quasi- judicial functions which, in my view, cannot be said to be null or void. In Ajaib Singh relied upon by the petitioner, the Apex Court holds that where the statute authorises a person in particular alone to perform statutory functions, the person of lower rank cannot perform even if he is holding charge of higher post. This was a case of preventive detention, and the statute referred not to the post of District Magistrate but the rank. It provides that a person "not lower in rank than a District Magistrate" could issue orders of detention. The Additional District Magistrate, though performing some functions of the District Magistrate, was lower in rank than the District Magistrate. In view of the drastic nature of the powers exercised, the Supreme Court held that he was not competent. The ratio in Ajaib Singh, in my view, has no application at all to the facts of the present case. The powers of detention are drastic as they result in curtailment of personal liberty and hence the statute itself referred to rank and not to a post. The words "not lower in rank than" were heavily relied upon by the Supreme Court. The later judgment of the Supreme Court in Janardhan v. State of Maharashtra (supra), would apply to the facts of the present case. Where performance of functions depends on the post and not the rank, the Supreme Court has consistently held a person, who for the time being, holds charge of the post is entitled to perform all functions of that post. In Ram Kishan, the Apex Court has made it clear that where superior officer has been authorised to perform some duties under the Act or Regulation, the subordinate or deputy officer lawfully performing those duties in the place of his superior is equally empowered to perform duties of the office of the superior. Similarly, in Gopalji Khanna the Supreme Court has made this position very clear in paragraphs 7 and 8 quoted in the earlier part of the judgment.

20. Another judgment relied upon by Mr. Bukhari, learned counsel for the petitioner in Collector of Central Excise v. New Tobacco (supra), in support of the proposition that the statute requires publication in the official Gazette and any order, having not been published, would be of no effect. He placed reliance upon the judgment contending that in the present case there was no publication of the order passed by the Principal Secretary on the letter dated August 13, 2002 in the official Gazette. He placed heavy reliance upon paragraphs 3 and 4 of the report. I am afraid, this judgment will not have any application to the facts of the present case. Under Section 39 of the Act, the only requirement is the publication of notification which, in my view, stood satisfied when in 1994 a notification was issued and published in the official gazette, delegating powers to the Commissioner of Labour. The order passed by the Principal Secretary to hold the post of the Commissioner of Labour in my view was the routine administrative order which does not require any special form of publication.

21. Mr. Bukhari, learned counsel for the petitioner also placed reliance upon the judgments of the Supreme Court in A. V. Venkateswaran v. Ramchand Sobharaj Wadhwani, contending that if there is a complete lack of jurisdiction in the officer or authority to take action impugned, writ petition would lie. Since I have entertained the present writ petition and recorded my finding on the principal question holding that respondent No. 2 was holding the charge of the Commissioner of Labour lawfully, this judgment would not help the petitioner. Similarly, the judgment of the Apex Court in State Trading Corporation of India v. State of Mysore (supra) would also not have any application to the present case since I have already held that respondent No. 2 has exercised powers under Section 25-O while lawfully holding the post of the Commissioner of Labour. The last judgment relied upon by Mr. Bukhari in Devidayal Rolling Mills v. Prakash Chimanlal Parikh and Ors. (supra) on the principles of acquiescence, waiver or estoppel, according to me, would apply in cases where the Court/quasi-judicial authority commits error. In view of the finding recorded in the earlier part of the judgment, this judgment also would not help the petitioner. In my view, respondent No. 2 was holding the post of the Commissioner of Labour lawfully at the relevant time and pursuant thereto exercised powers under Section 25-O of the Act and passed the impugned order and, therefore, the order passed by respondent No. 2 cannot be said to have been passed without authority of law.

22. Coming once again to the factual aspect, it would be necessary to make reference to the conduct of the petitioner. The impugned order came to be passed on September 5, 2002. The petitioner appeared to have filed review before the Commissioner of Labour under Sub-section (5) of Section 25-O of the Act and the complaint of unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act in the Industrial Court, Maharashtra, Mumbai on September 19, 2002. For the first time, grievance was made regarding the authority of the second respondent to hear and decide the application under Section 25-O of the Act. There is no dispute that respondent No. 2 heard both the sides on merits on August 19, 2002. No grievance whatsoever was made during the hearing raising objection to his authority. As a matter of fact, written submissions were also filed and the petitioner waited till the decision was pronounced on September 5, 2002 by respondent No. 2 and then for the first time on September 19, 2002 made a grievance about his legal authority to hear and decide the application under Section 25-O. In so far as the reliance placed by Mr. Bukhari, learned counsel for the petitioner, on the order dated October 1, 2002 passed by S. rADHAKRISHNAN, J. in Writ Petition No. 2447 of 2000, NOCIL Employees' Union v. Commissioner of Labour and Ors. is concerned, it is apparent from the order that the learned single Judge did not go into the merits of the contentions raised in the writ petition. The order itself indicates that the parties were agreeable for quashing and setting aside the impugned order therein. From the contents of the order, which is quoted in paragraph 5 of this judgment, this Court cannot be said to have examined the merits and the issue involved has been answered by the learned single Judge. This order, in my view, is of no use to the petitioner for any purpose whatsoever.

23. Needless to say that I have not examined the merits of the order passed by the second respondent and it would be open for the petitioner to challenge the order of the second respondent on merits, if not done already, before appropriate forum.

24. In the result, the writ petition is dismissed.

Rules discharged. No costs.

25. The Commissioner's cost is quantified at Rs. 7,500/-. The respondent-company is directed to deposit Rs. 7500/- in the office of the Prothonotary & Senior Master within a period of four weeks from today. The Commissioner shall be at liberty to withdraw the same.

26. At the request of Ms. Gayatri Singh, learned counsel for the respondent, I direct the parties to maintain status-quo as of today with regard to the concerned factory of respondent No. 4 which has already been closed down, for a period of six weeks from today.

27. Authenticated copy of this order may be made available to the parties.