S.N.SRIVASTAVA, J. - (1.) PETITIONER is a company within the meaning of the Indian Companies Act, 1956, with a workforce of 1542 workmen on its roll. The State of U. P. issued notification dated 27.2.1990 (Annexure -1 to the writ petition) by way of 7th Amendment, 1990 to Rule 3 of the Uttar Pradesh Factories Welfare Officers' Rules, 1955, which was prompted by the recommen -dations of the Second Pay Commission Report and also on the basis of the Equivalence Committee 1986. The amendment, it is alleged, has been given retrospective effect, i.e., 1st day of July, 1979. It may aptly be noted here that the recommendation of the Pay Commission are with regard to an amendment in Rule 3 of the rules which deals with grades and emoluments of the Welfare Officers in grade I, II and III. To enforce in obedience the aforesaid notification containing Amendment, Director Factories U. P. initiated correspon -dence with the petitioner and the last communication addressed by the Director Factories is dated 20.5.1990 embodying direction to comply with the amended rules and pay wages, allowances etc. to the Welfare Officers employed in the factory. Ostensibly, the petitioner, fearing prosecution which stared stark in the face owing to failure to implement the amended Rules, rushed to knock the door of this Court invoking its procedure under Article 226 by means of the present petition.
(2.) IT would thus appear that the subject -matter of impugnment in the instant petition is the Notification No. 226/XXXVI -3 -200 -(16) (W.O.) -82 dated February 27, 1990 (Annexure -1 to the petition). By way of notification impugned herein, the grade and scale of pay of Welfare Officer were revised w.e.f. July 1, 1979 on the basis of second Pay Commission Report and from January 1, 1986 on the basis of the Equivalence Committee Report. Sri Sudhir Chandra, learned senior advocate, argued that the State is wholly Incompetent to revise the grade and pay scale of Welfare Officer w.e.f. July 1, 1979 on the basis of Second Pay Commission Report and January 1, 1986 on the basis of the Equivalence Commission Report by the notification dated 27th February 1970, i.e., with retrospective effect. He further argued that while the Parliament could amend the law or enforce the same with retrospective effect by making amendment in the Act but so far as the rules which are in the nature of subordinate legislation, the State is wholly incompetent to revise the grade and pay scale of Welfare Officer. Therefore, the Uttar Pradesh Factories Welfare Officer (Seventh Amendment), Rules, 1990, will operate in vacuum. Sri Chandra relied upon law laid down in AIR 1961 SC 420, AIR 1970 SC 385 and 1950, AIR 1972 SC 2427 as well and (1979) 2 SCC 146 in support of his contention.
(3.) SRI Sudhir Chandra, learned counsel for the petitioner next argued that the non -compliance of the provisions would amount to criminal liability and prosecution. He further states that Seventh Amendment Rules of 1990 are incompetent so far as it has been given retrospective operation, therefore, the same may be quashed.;