1. Validity of Rule 5 of the Kerala Factories (Welfare Officers) Rules 1957 (hereinafter referred to as the Rules) is under challenge. Contention is that the same is beyond the rule making power of the State and hence ‘ultra vires’. The petitioner also seeks to set aside the incidental steps taken alleging violation of the relevant rules with regard to the appointment of Welfare Officers in the petitioner Company and the steps proposed to have prosecution proceedings.

2. The petitioner is a Government Company owned by the Central Government, coming within the purview of Sec.617 of the Indian Companies Act, 1956. It is a ‘Factory’ as well, as defined under the Factories Act employing nearly 2300 workers. By virtue of the mandate under Section 49 of the Factories Act, every Factory wherein five hundred or more workers are ordinarily employed, the Occupier shall employ in the Factory such number of Welfare Officers as may be prescribed. Sub-section(2) of Section 49 says that the State Government may prescribe the Duties, Qualifications and Conditions of service of the officers employed under sub-section (1).

3. By virtue of the powers conferred on the State, under Sections 49, 50 and 112 of the Factories Act, the Government of Kerala has formulated the Kerala Factories (Welfare Officers) Rules, 1957, prescribing the number of Welfare Officers to be appointed as given under Rule 3. Rules 4, 6 and 7 deal with Qualifications for appointment, Conditions of service and Duties; while Rule pertains to the Recruitment of Welfare Officers. As per Rule 5, the post of a Welfare Officer shall be advertised in any two prominent News Papers of the State and the selection shall be made from among the candidates applying for the post, by a Committee appointed by the occupier of the Factory, followed by appointments to be notified by the occupier to the chief Inspector of Factories giving full details of the qualification, age, pay, previous experience and other relevant particulars of the officer appointed and the terms and conditions of his service.

4. The case of the petitioner Company is that the petitioner has already appointed two persons as Welfare Officers, who are stated as duly qualified, after advertising in ‘three dailies’ such as Indian Express, Hindu and Malayala Manorama, inviting applications for initial appointment as ‘Executive Trainees’. The fact that the persons concerned were originally appointed as ‘Executive Trainees’ stands conceded. In response to the said advertisement, several applications were received and selection was made pursuant to the Written test, Group discussion and Interview. The concerned two persons, who were having all the requisite qualifications as prescribe under Rule 4 of the Rules were selected and appointed initially as ‘Executive Trainees’ and later, as Welfare Officer and Asst. Welfare Officer respectively. The said persons by name M.D. Varghese and A.K. Subhash (as revealed from ExtP3 letter/reply of the petitioner dated 25.03.1999 addressed to the first respondent) however, are not before this Court.

5. The issue popped up for the first time, when the third respondent conducted an inspection in the premises of the petitioner on 12.03.1998, followed by Ext. P1 proceedings, referring to violation of the relevant rules with regard to appointment of Welfare Officers in the petitioner Factory, asking to comply with the provisions and to report within seven days. It is stated that the petitioner furnished the details of appointment stating that the same was effected in conformity with the statutory prescriptions and that there was no violation at all. However, the first respondent issued Ext.P2 proceedings dated 09.03.1999, based on the inspection report submitted by the third respondent, observing that the two posts of Welfare Officers were lying vacant in the petitioner Factory and directed to effect recruitment of qualified persons as stipulated in the relevant rules.

6. On receipt of