P.K. Goswami, C.J. -
(1.) The petitioner No. 1 is a public limited company incorporated under the Indian Companies Act, It owns a tea garden named Moheema Tea Estate in the district of Sibsagar and carries on business of manufacture and sale and supply of tea. The petitioner No. 2 is a Director of the Company. The petitioners employ in their garden about 800 permanent daily labourers with 1600 as their dependants besides about 4500 casual labourers during the plucking season. The area under tea cultivation is about 750 acres. Under Section 36 of the Payment of Bonus Act, 1965, briefly 'the Act', the petitioner No. 2 applied on 20th August, 1969 (30-8-69 ) and on 4th August 3970 to the Secretary, Labour Department, Government of Assam for exemption from payment of bonus for the years 1968 and 1969 respectively for the reasons given in the petitions relating to the financial position of the company. The secretary, in due course, gave a hearing to the petitioners and rejected their prayer for exemption by his order of 26th July, 1971. Hence this writ application.
(2.) A Division Bench of this Court while dealing with a similar petition in Civil Rule No. 1151 of 1971 (Jagduar Tea and Trading Co. (P) Ltd. v. The State of Assam, held ex-concession that the disposal of the petition by the Secretary in that case was not in accordance with law. In this application, however, as well as in the connected application Civil Rule No. 549 of 1971 which were heard together, the learned Advocate-General, Meghalaya appearing on behalf of the Secretary, Cachar Chah Sramik Union, as well gs the learned Senior Government Advocate, Assam, on behalf of the first two respondents, submit that the matter should be reconsidered as the earlier decision was given on concession of Shri A.R. Barthakur, the learned Counsel appearing on behalf of the Labour Department of the Government of Assam. We. therefore, heard both the parties at length.
(3.) At the very outset, we should read Section 36 of the Act.
"If the appropriate Government, having regard to the financial position and other relevant circumstances of any establishment or class of establishments is of opinion that it will not be in public interest to apply all or any of the provisions of this Act thereto, it may, by notification in the Official Gazette, exempt for such period as may be specified therein and subject to such conditions as it may think fit to impose, such establishment or class of establishments from all or any of the provisions of this Act."
Our attention has not been drawn to any rules of procedure of hearing by the State Government. The stand of the State Government may best be quoted from their counter-affidavit submitted by the Secretary to the Government of Assam in the Department of Labour:
"............. According to the rules of business, the application for exemption was heard by the Secretary to the Government of Assam, Labour Department. According to the rules of business different matters are disposed of by different officers. In the instant case, the Secretary, Labour Department has been authorised by the Standing Labour Committee which was held on 13-12-1966 which was presided over by the Minister, to hear the application. It is submitted that the hearing given by the Secretary meant hearing by the State Government and the order ultimately was issued as order of the State Government....................."
Both the learned Advocate-General, Meghalaya and the learned Senior Government Advocate now support the stand taken by the Secretary in the counter-affidavit, while Mr. Choudhury for the petitioner submits that the State Government cannot be equated with the Secretary for the purpose of hearing an application under Section 36 of the Act, In order to appreciate the stand of the respondents, we have got to read Article 166 of the Constitution.
"166. (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion."
Under Article 166 (2) and (3), the Governor has made the Assam Rules of Executive Business on 5th March 1969. We may note certain relevant rules relied upon by the respondents:
Rule 4: "The business of the Government shall be transacted in the different Departments specified in the First Schedule.
Rule 5: "The Governor shall, on the advice of the Chief Minister, allot, among the Ministers, the business of the Government by assigning one or more Departments to the charge of a Minister.
X X X x"
Rule 6: "Each Department of the Secretariat shall consist of the Secretary to the Government, who shall be the official head of that Department, and of such other Government Servants as the State Government may determine. x x x"
Rule 7: "The Council shall be collectively responsible for all executive orders issued in the name of the Governor in accordance with these Rules, whether such orders are authorised by an individual Minister on a matter pertaining to his portfolio or as the result of discussion at a meeting of the Council, or of the Cabinet or otherwise."
Rule 9: "Without prejudice to the pro- visions of Rule 7, the Minister-in-charge of a Department shall be primarily responsible for the disposal of the business appertaining to that Department."
Rule 21: "Except as otherwise provided by any other Rule, cases shall ordinarily be disposed of by or under the authority of the Minister-in-charge of the Department who may, by means of standing orders, give such directions as he thinks fit for the disposal of cases in the Department. Copies of such standing orders shall be sent to the Governor and the Chief Minister."
Rule 23: "(1) A Secretary shall consult other Departments where such consultation is required under the Rules.
(2) If such a matter is placed before the Minister, the views of the Departments consulted shall be brought specifically to the notice of the Minister.
(3) In a case where the Secretary has taken the orders of his Minister before consulting the other Departments, the advice of the other Departments shall be brought to the notice of the Minister before finalisation of the orders, if the advice is not in conformity with the order of the Minister."
Rule 26: "(1) A Secretary may, with the orders of the Minister-in-charge of the Department, ask to see the papers in any Department, other than the Finance Department, if such papers arc required for the disposal of a case in his department.
(2) Such request shall be dealt with under the orders of the Minister.
X X X x"
Item 14 in the First Schedule to the Rules mentions "Labour Department" and the matter, which we are dealing with, is a matter relating to that Department. It is clear that under the parliamentary system of Government, which is envisaged in our Constitution, the Governor is the Head of the Administration, but he acts on the advice of the Council of Ministers.;