1. This is an application, under Art. 226 of the Constitution, for the issue of a writ of certiorari to quash the orders of the Inspector of Factories, Visakhapatnam, and the Deputy Chief Inspector of Factories, Andhra. The following brief statement of facts will be useful for determining the points raised in this writ petition : The Caltex Oil Refining (India), Ltd., acquired a site of the extent of about 380 acres in Malkapuram, near Visakhapatnam, and engaged the petitioner-company to carry on the construction works designed to install, erect and construct an oil refinery. The Caltex Oil Refining (India), Ltd. (hereinafter referred to as 'the principal company'), has made an application to the Chief Inspector of Factories for permission to construct, extend or take into use the said site under S. 6(1) of the Factories Act in form No. 1 together with the prescribed plans. It is stated that the said application is still pending orders before the Chief Inspector. The plans filed by the principal company related to the entire premises measuring about 380 acres. On 22 February 1956, the Inspector of Factories made an inspection of the premises of the principal company and also subsequently on several occasions. On 24 February 1956, he served an order on the petitioner-company stating inter alia that he found that the premises known as 'Transport Garage, ' the Lummus Company (India), Ltd., Visakhapatnam, has been registered and placed on the registers of his office as a factory under S. 2(m)(1) of the Act and that the company should comply with the various provisions of the Factories Act and the rules made thereunder. A similar order was also served on the petitioner company on 25 February 1956, with regard to the 'fabrication shop.' The petitioner-company thereupon preferred appeals to the Chief Inspector of Factories, Andhra State, under S. 107 of the Factories Act rule 98 of the Factory Rules questioning the correctness and validity of the above mentioned orders. The complaint made in this writ petition is, that the Deputy Chief Inspector of Factories disposed of the appeals filed by the petitioner-company without complying with the requirements of S. 107 of the Factories Act and rule 98(2) of the Factory Rules.
2. Section 107 of the Factories Act prescribes the procedure for filing appeals and rule 98 provides the procedure for disposal of the appeals so filed. The material portion of rule 98(2) is as follows :
'On receipt of the memorandum of appeal, the appellate authority shall, if it think fit or if the appellant has requested that the appeal should be heard with aid of assessors, call upon the body declared under sub-rule (3) to be representative of the industry concerned, to appoint an assessor ... It shall then fix a date for the hearing of the appeal and shall give due notice of such date to the appellant and the Inspector whose order is appealed against, and shall call upon the two assessors to appear upon such date to assist in the hearing of the appeal.'
3. This rule requires the appellate authority to fix a date for the hearing of the appeal and give due to the appellant and the Inspector whose order is appealed against. It has been contended by the respondents that it is only in a case where the appellant asks for the appointment of an assessor that it is obligatory on the part of the appellate authority to give notice of the dated of hearing of the appeal and not otherwise. I do not think that sub-rule (2) of rule 98 can be construed in the manner sought for by the respondents. This requirement that notice of the hearing of the appeal should be given to the appellant is de hors the appointment of assessors. From the language of the rule it is manifest that this requirement is mandatory. There being no suggestion in the counter-affidavit of the respondents that a notice as required by rule 98(2) has been given to the petitioner, the order of the Inspector of Factories must be held to have contravened the mandatory provisions of rule 98(2) and it must therefore be quashed. The Chief Inspector of Factories is directed to dispose of the appeal after complying with the provisions of rule 98(2). The petitioner will have his costs from the respondents. Advocate's fee Rs. 100.