Jharkhand High Court
Brij Bihari Tiwari vs The State Of Jharkhand Through The ... on 24 April, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 279 of 2022
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Brij Bihari Tiwari .... Appellant.
-Versus-
1. The State of Jharkhand through the Secretary, Labour Department of
Labour, Govt. of Jharkhand, Ranchi.
2. The Secretary, Department of Labour, officiating Govt. of Jharkhand,
Ranchi.
3. The Chief Inspector of Factories, Govt. of Jharkhand. Labour Building,
Doranda, Ranchi.
4. M/s General Engineering and Marketing Organization ..... Respondent(s)
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CORAM : SRI SANJAYA KUMAR MISHRA, C.J.
SRI ANANDA SEN, J.
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For the Appellant(s) : M/s Indrajit Sinha, Anjali Sinha and Ajay Kumar
Pathak, Advocates.
For the State : Mr. Sreenu Garapati, SC-III
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6/ Dated: 24.04.2023
Upon hearing the learned counsel for the parties, this Court passed
the following, (Per, Sanjaya Kumar Mishra, C.J.)
ORDER
1. Petitioner No. 2 in WP(C) No. 4793 of 2018 has assailed the order
dated 8.3.2022 passed by the learned Single Judge, rejecting the writ petition
filed along with M/s General Engineering and Marketing Organization, for grant of
competency certificate under Rule 2-A of the Jharkhand Factories Rules, 1950
(hereinafter referred to as "the Rules, 1950").
2. The factual background is not disputed at this stage.
3. Petitioner No. 1, the proprietorship firm, which engaged competent
persons for the purpose of carrying out tests examination, inspection and
certification under the Factories Act, 1948 and the Rules made thereunder. Earlier,
the petitioner No. 1 was issued certificate of competency with respect to one
Surendra Kumar Singh being a Civil engineer employed by it. After expiry of the
said competency certificate on 18.1.2018, petitioner No. 1 being an institution
applied before the respondent No. 3 i.e. the Chief Inspector of Factories, Govt. of
Jharkhand, Ranchi for renewal of certificate of competency issued in the name of
Surendera Kumar Singh as well as for grant of fresh competency certificate to
petitioner No. 2 (a mechanical engineer employed by petitioner No. 1), whereupon
a show cause notice was issued by respondent No. 3 vide letter dated 10.5.2018
to the petitioner No. 1 stating that competency certificate of petitioner No. 2 was
once cancelled by the then Chief Inspector of Factories, Jharkhand and therefore,
it would not be proper to reconsider his name as a competent person. The
respondent No. 3 also stated in the said letter that as per the records maintained
in the office of the said respondent, the petitioner No. 1 had failed to comply
condition Nos. V, VI, IX, X and XII of the competency certificate, which was
considered as violation of the provisions of Jharkhand Factories Rules, 1950 and
hence, it was required to file reply to the show cause notice as to why the
application for renewal of competency certificate should not be rejected.
Petitioner No. 1 replied the said show cause notice vide its letter dated
25.5.2018 stating that there had been no violation as alleged and there was no
impediment in renewing the certificate of competency issued with respect to one
Surendra Kumar Singh. It was also stated in the said reply that since the petitioner
No. 2 was a qualified and experienced person fulfilling all the eligibility criteria for
declaring him as a competent person under rule 2-A of the Rules, 1950, his
competency certificate was cancelled with ulterior motive. However, the
respondent No. 3 vide letter dated 31.5.2018 only recognized Surendra Kumar
Singh as competent person and declined to recognize the petitioner No. 2 as
competent person.
4. The learned counsel for the appellant-petitioner No. 2 would submit
that the order impugned before the learned Single Judge has the effect of
debarring the petitioner No. 2 is for indefinite period, which is in the teeth of
various judgments of the Hon'ble Supreme Court as well as of this Court. It is also
asserted that as per the information received under the Right to Information Act,
2005 by the proprietor of petitioner No. 1 that similarly situated person namely,
Sumit Kumar, whose certificate was earlier revoked was subsequently given the
competency certificate and thus the respondents have discriminated the petitioner
No. 2 as against similarly situated persons. It is further submitted that there is no
provision in the Factories Act, 1948 as well as in the Rules, 1950 empowering the
respondent No. 3 to revoke the certificate of the person/institution for an indefinite
period, even if it is presumed that once the same is revoked and there is no
provision for renewal of a competency certificate, the said revocation can only be
applicable till the validity of the certificate lasts and not beyond that. However, the
learned Single Judge took into consideration the provision of Rule 2-A of the Rules
1950 and held that though there is no bar in granting certificate in favour of
person, whose competency certificate was revoked within the realm of the duty of
respondent No. 3 i.e. the Chief Inspector of Factories to deny the grant of the
certificate in favour of the person, who is guilty of violation of the terms and
conditions of the certificate. For the purpose of appreciation, he considered the
appropriate to take note of the exact word used in the relevant Rules. Rule 2-A of
the Rules 1950 reads as follows:-
"2A. Procedure of grant of Certificate of Competency. -
(1) The Chief Inspector may recognise any person as
"competent person" within such area and for such period as
may be specified for the purposes of carrying out tests,
examinations, inspections and certification for such
buildings, dangerous machinery, hoists and lifts, lifting
machines and lifting tackles, pressure plant, confined space,
ventilation system and such other process or plant and
equipment as stipulated in the Act and the Rules made
thereunder, located in a factory, if such person possess the
qualifications, experiences and other requirements as set out
in the schedule annexed to this Rule:
Provided that the Chief Inspector may relax the requirements
of qualifications in respect of a competent person, if such a
person is exceptionally experienced and knowledgeable, but
not the requirements in respect of the facilities at his
command:
Provided further that the competent person recognised
under this provision shall not be above the age of 62 and
shall be physically fit for the purpose of carrying out the
tests, examination and inspection.
(2) The Chief Inspector may recognise an institution of
repute, having person possessing qualifications and
experience as set out in the schedule annexed to subrule (1)
for the purposes of carrying out tests, examinations
inspections and certifications for buildings, dangerous
machinery, hoists and lifts, lifting machine, and lifting tackles,
pressure plant, confined space ventilation system and such
other process or plant and equipment as stipulated in the Act
and the Rules made thereunder, as a competent person
within such area and for such period as may be specified
(3) The Chief Inspector on receipt of an application in the
prescribed form from a person or an institution intending to
be recognised as a 'competent person' for the purposes of
this Act and the Rules made thereunder, shall register such
application and after satisfying himself as regards
competence and facilities available at the disposal of the
applicant may recognise the applicant as a 'competent
person'. Such application shall be disposed of either by
issuing a certificate of competency in the prescribed form or
by rejecting the same specifying reasons therefor within a
period of 60 days.
(4) The Chief Inspector, if he has reason to believe that
'competent person':-
(a) has violated any condition stipulated in the certificate of
competency;
(b) has carried out a test, examination and inspection or has
acted in manner inconsistent with the intent or the purpose of
this Act or the Rules made thereunder, or has omitted to act
as required under the Act or Rules made thereunder;
(c) for any other reason to be recorded in writing; may
revoke the certificate of competency after giving an
opportunity to the 'competent person' for being heard.
Explanation.-For the purpose of this Rule, an institution
includes an organisation.
(5) The Chief Inspector may, for reasons to be recorded in
writing, require re-certification of lifting machines, lifting
tackles, pressure plant or ventilation system, as the case
may be, which has been certified by a competent person
outside the State."
5. It is thus seem that while considering an application for grant of
competency certificate, the Chief Inspector of Factories has to see the
competence of person, who is to be granted the certificate of competency. No
doubt, under Clause (4) of the aforesaid Rules, the Chief Inspector, if he has
reason to believe that competent person has violated any condition stipulated in
the certificate of competency, may deny the grant of certificate to the said person.
6. Petitioner No. 2 i.e. the appellant before this Court was engaged by
one M/s Yash Enterprises and the said Yash Enterprises was granted the
competency certificate, recognizing the competence of the present appellant to
carry out tests, examination, inspection and certification under the Factories Act,
1948.
7. The allegation against the said M/s Yash Enterprises is that it did not
submit the certificate in respect of calibration of equipment used for testing
purposes every year. Though the notice through which we see that the application
has been cancelled has not been specified for which year and how many years
that has not been done. Moreover we are of the opinion that it is only a technical
consideration, it does not speak about the competence of the petitioner-appellant
to act as a competent person to carry on tests etc. Clause regarding filing of the
returns has been allegedly violated by the previous employer of the present
appellant.
8. It is also not disputed at this stage that similarly placed person was
granted permission by the Chief Inspector of Factories, Jharkhand, but the learned
counsel for the State would submit that after it was brought to his notice as such
certificate has been granted, the same has been revoked by respondent No. 3, but
there is no dispute that such revocation came after filing of the writ petition. So this
Court is of the opinion that respondent No. 3 has not only applied the provision of
law in a pragmatic manner, but in a very mechanical way, has rejected the
application of the appellant and his employer for grant of competence certificate.
He is guilty of discrimination and when the matter was brought to the notice of this
Court, the favoured person was again noticed that the competence certificate was
cancelled.
9. In that view of the matter, we find that the action of respondent No. 3
is violative of the principle of test of reasonableness. Thus the order passed by the
learned Single Judge requires interference. Accordingly, this appeal is allowed.
10. Consequently, order dated 8.3.2022 passed by the learned Single
Judge in WP(C) No. 4793 of 2018 as well as the letter dated 10.5.2018
(Annexure-10 to this appeal) is quashed and set aside. Respondent No. 3 is
directed to pass appropriate order in accordance with law.
11. Let the order of this Court be intimated to the respondents at the cost
of the appellant, for which, requisites etc. must be filed within seven days.
(Sanjaya Kumar Mishra, C.J.)
Anu/-CP2. (Ananda Sen, J.)
