Judgment B.S.Sinha, J. 1. The prayer of the petitioner, the Management of the Tata Iron and Steel Company Limited, is to quash Annexure 1 appended to it, the English translation of which is Annexure 2. Annexure 1 is an order dated 27.11.1981 passed by the Labour Commissioner, Government of Bihar, respondent No. 1 directing the re-instatement of Sri Syed Shafi Ahmad, respondent No. 3 and passing certain consequential orders. This order has been passed by the Labour Commissioner under Rule 5(4) of the Bihar Factories Welfare Officers Rules, 1952 , (henceforth referred to as the Rules). 2. The relevant facts are not in controversy. Respondent No. 3 Sri Syed Shafi Ahmad was appointed as a Personnel Officer by the petitioner on 10.8.1959 and one of the conditions of his service in the letter appointing him as Personnel Officer, was that he would be governed by the works standing orders of the petitioner. In course of his employment the respondent No. 3 was promoted a number of times and at the relevant time was the Head of Department of Employment Bureau. According to the petitioner the company has delegated powers to various Heads of Dapartments and such delegation has also been made in favour of the respondent No. 3, copy of this order of delegation is Annexure 5. In November 1978 the respondent No. 3 was drawing salary of Rs. 21,00. On 2.11.1978 the services of the respondent No. 3 were terminated, under the contract of service, by giving pay for one month, in lieu of one months notice and all his dues were offered to be allowed by him ; copy of this order of termination is Annexure 3. Against the aforesaid order of termination respondent No. 3 filed an appeal/complaint petition under Sec. 5(4) of the Rules before the respondent No. 1, the Labour Commissioner Government of Bihar, assailing the termination on two grounds, namely (1) that the letter of termination amounted to discharge, dismissal or otherwise a punishment and (2) that the terms of contract of service are contrary to the provisions of the Rules and it lacks legal and administrative property. Before the Labour Commissioner the petitioner filed a written statement questioning the maintainability of the said appeal/complaint on the ground that the Rules were not applicable to respondent No. 3 who was, at the relevant time, exercising powers much beyond the duties and functions envisaged under the Rules, and secondly such appointment of respondent No. 3 was governed by the works standing orders of the Company which was evident from the letter of appointment. His services could have been terminated under the terms of contract of service and such termination did not amount to dismissal, discharge or otherwise a punishment. It, was, however, stated that the termination was the result of loss of confidence by the Management in respondent No. 3. A copy of the written statement filed is Annexure 7 which was not complete and hence in the counter affidavit filed on behalf of respondent Nos. 1 and 2, a complete copy of the written statement along with annexure has been appended and marked as Annexure A. During the course of consideration of the appeal/complaint the Labour Commissioner had inquired from the peritioner as to why the petitioner bad lost confidence in respondent No. 3 to which a reply had bsen given copy of which is Annexure 9 and is dated 7.4.1979. 3. On a consideration of the materials on records by the impugned order the learned Labour Commissioner held that respondent No. 3 was a Welfare officer within the meaning of the Rules and that the termination of his service was unjustified and invalid because of the infraction of the Rules of natural justice and that the termination was by way of punishment. Having come to this conclusion he directed that the respondent No. 3 will be deemed to be reinstated on his post from 3.11.1978 that is the date of his termination, but there would be no direction for payment of salary to the respondent No. 3 from his date of termination to the date of his joining duties. But this would not constitute break in his service and for all other benefits he would be deemed to be in service from 3.11.1978. 4. Mr. But this would not constitute break in his service and for all other benefits he would be deemed to be in service from 3.11.1978. 4. Mr. K.D. Chatterjee learned Counsel appearing for the petitioner has submitted that the impugned order cannot be sustained for three reasons According to the learned Counsel the respondent No. 3 was not a Welfare Officer with the terms of the Rules at the time of the termination of his service. He further submitted that even if respondent No. 3 was a Welfare Officer the termination of his service under the terms of contract of his employment was not a case of punitive action which would attract the provisions of Rule 6(4) of the Rules. He, therefore, contended that the learned Labour Commissioner had no jurisdiction to pass the Impugned order as it was a simple order of termination of service under the terms of contract. He lastly submitted that in any view Rule 5(4) was ultra vires, and therefore, no action would be taken under its provisions. Two sets of counter-affidavit have been filed, first is on behalf of the respondent Nos. 1 and 2 namely the Labour Commissioner, Govt. of Bihar, and the State of Bihar and the second is by the respondent No. 3 Sri Syed Shafi Ahmad. On behalf of the respondent Nos. 2 and 3 it has been stated that the termination of the service of respondent No, 3 was not a case of termination simpliciter made in accordance with the Standing Orders of the Company; it was a punishment imposed upon him without specifically saying so and hence was in violation of Section 5(4) of the Rules. It was further asserted that the respondent No. 3 was a Welfare Officer within the definition of Clause (h) the Rule 1-A of the Rules. On a perusal of the duties as enumerated in Annexure A it was clear that respondent No. 3 was a Welfare Officer in terms of Clauses (v) and (vi) of Rule 3 of the Rules. 5. The respondent No. 3 in his counter-affidavit also substantially supported the statement made in the counter affidavit filed by the respondent Nos. On a perusal of the duties as enumerated in Annexure A it was clear that respondent No. 3 was a Welfare Officer in terms of Clauses (v) and (vi) of Rule 3 of the Rules. 5. The respondent No. 3 in his counter-affidavit also substantially supported the statement made in the counter affidavit filed by the respondent Nos. 1 and 2.He has asserted that before terminating his services neither an inquiry was conducted nor was he given a proper opportunity to show cause and the termination of his service by Annexure 3 contained stigma and was by way of punishment, hence the Labour Commissioner was justified in passing the impugned order. He has asserted that he was a Welfare Officer within the meaning of the Rules. He has further stated that before passing the order of termination of his services the Management did not take any approval from the Labour Commissioner, and as the order was punitive in nature the Management was bound to do so. He has further stated that his name has always been shown in the list of Welfare Officers of the Management and has filed some of those lists ars annexures to his counter-affidavit. 6. The first question that falls for consideration in this case is whether the respondent No. 3 at the relevant time was a Welfare Officer. Before considering the submission made by the parties on the point it would be relevant to take notice of certain provisions of law. 7. Sec. 49 of the Factories Act, 1948 provides that "in 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. And Sub-section (2) of that section further provides that the State Government may prescribe the duties, qualifications and conditions of service of officers employed under Sub-section (1)". In the exercise of the powers conferrred by Sections 49 and 112 of the Factories Act, 1948 , the Bihar Factories Welfare Officers Rules, 1952 have been made by the Governor of Bihar. Under Rule 1-A(b) a Welfare Officer has been defined and under Rule 3 his duties and functions have been stated. In the exercise of the powers conferrred by Sections 49 and 112 of the Factories Act, 1948 , the Bihar Factories Welfare Officers Rules, 1952 have been made by the Governor of Bihar. Under Rule 1-A(b) a Welfare Officer has been defined and under Rule 3 his duties and functions have been stated. Rule 5 provides for the conditions of service and under Rule 5(4) it is laid down that a Welfare Officer shall not be discharged, dismissed or otherwise punished except with the previous approval of the Labour Commissioner, Bihar. However, certain exceptions are made. This sub-rule, however, provides that a Welfare Officer who is subject to punishment under Sub-rule (5) shall be entitled to appeal to the Labour Commissioner whose decision, after hearing the parties, shall be final and binding. By reference to these Rules Mr. Chatterjee submitted that at the relevant time the respondent No. 3 was not a Welfare Officer within the meaning of the Rules. Mr. Nand Kishore Prasad appearing for respondent No. 3 urged that the respondent No. 3 was a Welfare Officer within the meaning of the Rules. It would be convenient at this stage to extract the relevant Rules, which are as follows: Rule 1-A(h). "Welfare Officer" means a whole time officer by whatsoever designation known, employed in a factory under Sub-section (1) of Sec. 49 exclusively to carry out any or all of the duties and functions specified in Rule; By reference to this definition Mr. Chatterjee submitted that a Welfare Officer must be a whole time Officer who exclusively carries out any or all of the duties and functions specified in Rule 3, and hence if any one performs any duty and function apart from those specified in Rule 3, he would not be a Welfare Officer within the meaning of this definition. Mr. Nand Kishore Pd. on the other hand, contends that if any Officer, by whatsoever designation he is known, carried out any or all of the duties and functions specified in Rule 3, then even if he performs other duties, he will be a Welfare Officer. According to Mr. Pvasad the word exclusively refers to the factory and not to the duties and functions of a Welfare Officer. I am of the view that extreme stands have been taken by both the learned Counsels. According to Mr. Pvasad the word exclusively refers to the factory and not to the duties and functions of a Welfare Officer. I am of the view that extreme stands have been taken by both the learned Counsels. The test to determine whether an officer is a Welfare Officer or not, would be to see as to what is the predominant functional duties of the officer concerned and merely because incidentally some other type of work is entrusted to him it would not matter. In other words the real test is what is the substantial nature of employment of the person concerned. B.S.O.S. and Co. V/s. Management Staff Asscn. -- , one of the questions that fell for consideration was as to who is a workman within the definition of Sec.2(s) of the Industrial Disputes Act, 1947. Bhargava, J. for the Court observed that in practice quite a large number of employees are employed in industries to do work of more than one kind and a persou might be doing technical as well as clerical work. He, therefore, observed that for this purpose a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other type of work". The Supreme Court in the aforesaid decision further noticed that one of the tests was whether the duties assigned to him form part of his principal and main duties. In case of Reid V/s. British and Irish Steam Packet Co. Ltd. (1921) 2 K.B.D. 319 it was observed, that to determine the nature of employment of a person it had to be seen as to what is the substantial work for which he is engaged. If a person also does some incidental OF ancillary work that would not be the test for judging the nature of his employment. Therefore, in this particular case what has to be determined is, were the duties and functions, as provided under Rule 3, the predominant duties of Respondent No. 3? 8. Mr. Chatterjee by reference to Annexure 5 and the basic functions as appended to the written of the petitioner before the Labour Commissioner, has submitted that the predominant functional duties of the respondent No. 3 were not a Welfare Officer. 8. Mr. Chatterjee by reference to Annexure 5 and the basic functions as appended to the written of the petitioner before the Labour Commissioner, has submitted that the predominant functional duties of the respondent No. 3 were not a Welfare Officer. An objection has been taken that Annexure 5 which is the instrument of delegation to Heads of Departments cannot be used in this application because the same was never brought to the notice of the Labour Commissioner. I would, therefore, refer only to the functions as appended to Annexure A. The basic functions appended to the aforesaid written statement provides for the functions of the Deputy Personnel Manager, Employment, which undoubtedly the respondent No. 3 was at the relevant time. Reliance for the petitioner was placed on IB which reads as "planning direction, co-ordination and control of the activities and personnel of the department and amongst the responsibilities which is in Paragraph (ii), it is stated, that in addition to the common managerial responsibilities, the responsibilities would be apart from Orders (1) to prepare and implement detailed work schedules of the department (2) to determine the requirement of materials and services for the scheduled programme of work and ensure their procurement, (3) to ensure an effective implementation of the Companys personal policies aud procedure with regard to the activities entrusted to his department. Mr. Chatterjee submitted that these being some of the predominant functional duties of the respondent No. 3 they would not be covered by any of the provisions of Rule 3 of the Rules. The Labour Commissioner, howevep. held that from the written statement of the Management it appeared that the respondent No. 3 who was a Deputy Personnel Manager was doing the job employment of workers, maintenance of service records, payment of gratuity and provident fund, to notify the vacancies to the local Employment Exchange and getting the workers examined by the Doctor etc. The above jobs come under the Rules 3(5) and 3(6) of the Rules and hence the respondent No. 3 was a Welfare Officer. He further held that even with his higher salary he was discharging the duties and responsibilities of a Welfare Officer. The above jobs come under the Rules 3(5) and 3(6) of the Rules and hence the respondent No. 3 was a Welfare Officer. He further held that even with his higher salary he was discharging the duties and responsibilities of a Welfare Officer. Sub-rules (v) and (vi) of Rule 3 reads as follows: (v) Dealing with wages and employment matter; (vl) Advising management in respect of fulfilment of statutory or other obligations on their part concerning application of Factories Act, 1948 , Payment of Wages Act, 1936, Maternity Benefit Act, Workmens Compensation Act and other Labour and allied legislations; The basic functions as appended in Annexure A shows that the Deputy Personnel Manager, Employment, would be respsnslble for providing functional service and advice to the Management in respect of recruitment, selection, induction and placement of the employees; systematic maintenance of their service records; enquiries arising out of claims for settlement dues including gratuity, and provident fund monies; and the procurement of passports and visas for Companys employees and their families going abroad, services are requisitioned by the Company. The further basic function is the planning direction, co-ordination and control of the activities and personnel of the department. The further basic function is the planning direction, co-ordination and control of the activities and personnel of the department. Amongst his responsibilities apart from what I have referred to above are to register employees relations for employment, arrangement for notifying the vacancies, to receive and arrange for proper tabulation of applications and to request the authorities concerned to make final scrutiny ensuring that the candidates called for test and interview on the basis of minimum qualifications and experience, to arrange for written test to maintain records, to arrange for pre-employment and re-employment, medical examination of candidates; to arrange for the induction of new employees, according to the companys induction of procedure; to arrange for rehabilitations of employees who are made unfit for their original jobs due to illness or accident to prepare and maintain service cards of all employees of the company, ensure that the information contained therein is correct and up-to-date, to arrange payment of maternity benefit to female employees, to issue permits to employees to enter the works, vital installations and offices of the company; to arrange for the issue of service certificate to employees in the prescribed form on termination of service; to conduct enquiries arising out of claims for settlement dues of retired, discharged, dismissed or deceased employees; and to identify the claimants and to interview employees and non-employees once a week with a view to settling their grievances relating to employment and non-payment of settlement dues. It further provides that he would be valid within the frame work of the companys policies and directives to take necessary action for the discharge of the responsibilities assigned to him. Even the committees assigned to him relate to employment. Therefore, what I have enumerated above it seems obvious that the primary function of the respondent No. 3 would be covered by Rule 3 of the Rules, particularly Sub-rules (v) and (vi) and even to an extent Sub-rule (ix) of Rule 3. Under his managerial capacity he might have, as a senior officer, certain other functions assigned to him, but those it appears are Incidental to the predominant duties that he was discharging. Under his managerial capacity he might have, as a senior officer, certain other functions assigned to him, but those it appears are Incidental to the predominant duties that he was discharging. It may further be noticed, as pointed out by the Labour Commissioner as well that in the lists of Welfare Officers sent to the Chief Inspector of Factories for the years 1974, 1975, 1976 and 1977 by the petitioner, the name of resppndent No. 3 has always been included. I am therefore, in agreement with the conclusion of the learned Labour Commissioner that at the relevant time the respondent No. 3 was a Welfare Officer within the definition of Clause (h) of Rule 1-A of the Rules. 9. The next question that falls for consideration is whether the termination of the services of the respondent No. 3 was a termination simplicitor under the terms of contract or was in substance a punitive action taken by the Management. 10. I have already mentioned above that one of the terms of employment of the respondent No. 3 was that he would be governed by the works standing orders, a copy of which was enclosed with his letter offering him the post of a Personnel Officer, copy of this letter is Annexure-4, This is not disputed. It is further not in dispute that Clause 53 of the Works Standing Order of the company which is quoted in paragraph-4 of the writ petition reads as follows: The Company may at any time discharge an employee (including a temporary employee engaged on other than construction job who has rendered continuous service for twelve months notice or more) or terminate his service giving him one calendar months notice or by payment of pay in lieu of notice, provided that temporary employees other than those referred to above and probationers shall not be entitled to any notice of discharge or termination of service. 11. Therefore, the services of the respondent No. 3 could be terminated by giving him one calendar months notice or by payment of pay in lieu of such notice. Annexure-3 which is the communication dated 2.11.1978 terminating the employment of respondent No. 3 is on the face of it a simple termination under the terms of contract. 11. Therefore, the services of the respondent No. 3 could be terminated by giving him one calendar months notice or by payment of pay in lieu of such notice. Annexure-3 which is the communication dated 2.11.1978 terminating the employment of respondent No. 3 is on the face of it a simple termination under the terms of contract. The relevant portion of it provides that the services of respondent No. 3 are being terminated with effect from 3.11.1978 in accordance with the terms and conditions of his contract of service, and his salary for the current month and for the month of December 1978 in lieu of notice was being deposited in his account with the Bank. It was further stated therein that he could collect his other dues from the company in accord ince with Companys rules and procedure. Mr. Prasad for the respondent No. 3 has submitted that the terms as provided under the works standing order to the extent that it violated Rule 5(2) of the Rules would not be applicable to a Welfare Officer. The submission was that in view of Rule 3(2), the employer cannot terminate the services of a Welfare Officer by giving him one calendar months notice or by payment of pay in lieu of such notice. Rule 5(2) lays that all appointment of Welfare Officers shall be made on permanent basis except those in temporary and leave vacancies. It further lays down that the candidates appointed on a permanent basis may initially be kept on probation. It is urged that as all appointments of Welfare Officers under the Rule must be on a permanent basis an agreement that the services can be terminated by giving one months calendar notice of payment in lieu of such notice, will be in violation of this provision. I am not persuaded to accept this submission. If "Permanent basis" in Rule 5(2) is Interpreted to mean that there cannot be termination of service of a Welfare Officer apart from the circumstances mentioned in Rule 5(4) of the Rules then even providing for superannuation of a Welfare Officer on attaining a particular age as might be provided by an employer would be violative of Rule 5(2). This would be to my mind giving a very extreme meaning to the expression "permanent basis" in the context of employment. This would be to my mind giving a very extreme meaning to the expression "permanent basis" in the context of employment. Permanency in employment is usually used to distinguish it from a temporary employment for a fixed or unfixed period or an ad hoc employment or an employment specifically for a fixed period under a contract. I am, therefore, inclined to the view that under Rule 5(2) the appointment of a Welfare Officer shall be as a permanent Welfare Officer except in the circumstances mentioned therein, but such permanent appointment will not necessarily mean that there cannot be a contract for termination otherwise than by way of punishment. Although the appointment is on permanent basis, it can be terminated in terms of Rule 53 of the works standing orders. The question that still survives consideration is whether the termination of the services of the respondent No. 3 was a termination simplicitor or was substantially punitive in nature and amounted to punishment. 12. It would be convenient to extract the relevant portions of Rule 5(4) of the Rules: No Welfare Officer, shall be discharged, dismissed or otherwise punished except with the previous approval of Labour Commissioner, Bihar obtained on proceedings drawn up against the Officer; In this context it is not necessary to quote the other provisos mentioned under this sub-rule. By reading the aforesaid provision it is obvious that to come within the mischief of it the person concerned must have teen discharged, dismissed or otherwise punished, In other words in the instant case it has got to be seen whether the order was an order of punishment. There cannot be any doubt that it is open to the Court to consider the substance of the matter and not to consider the form in which the order terminating the services of an employee has been passed as conclusive. Mr. Chatterjee has submitted that there is nothing to show that the termination is on extraneous or mala fide considerations nor was there anything to show that there was any ill feeling between the Management and the respondent No. 3. Mr. Chatterjee has submitted that there is nothing to show that the termination is on extraneous or mala fide considerations nor was there anything to show that there was any ill feeling between the Management and the respondent No. 3. The termination, it is submitted, was the result of loss of confidence by the Management in respondent No. 3 and hence if there were reasonable grounds to show that it was no longer possible for the employer to repose confidence the termination would be a simple termination within the terms of contract and would not amount to punishment. 13 It would first be convenient to refer to some of the decisions cited at the Bar. In Union of India V/s. P.S. Bhatt A.I.R. 1981 S.C. 957 the question that fell for consideration was whether the termination or service of an employee on probation was by way of punishment or a termination simplicitor. The allegation there was that the motive behind tho order was that the probationer had indulged in loose talk and had used filthy language against his superior which was tape recorded and sent to the Station Director. It was held that even if it be held that the indulging in loose talks and filthy and abusive language be considered to be the motive or the Inducing factor which influenced the authorities to pass the Impugned order of termination of the period of probation, it could not be said to be an order by way of punishment as the termination of employment on probation was termination simplicitor and didnot attach any kind of stigma. 14. Similarly in Oil and Natural Gas Commission V/s. Md. S. Iskander Ali -- it was held that where the work of probationer was never satisfactory and the order of termination simplicitor was passed after dropping an inquiry sgainst him it could not be termed as penalty or punishment even though it was manifest that the misconduct, negligence, inefficiency may be the motive or the inducing factor which influenced the employer in terminating the services of the employee which power is there to the employer from the contract of service. 15. In case of A.C. Co. V/s. P.N. Sharma A.I.R. 1955, the employer terminated the services of a Welfare Officer on the ground that be had refused to accept an order of transfer. 15. In case of A.C. Co. V/s. P.N. Sharma A.I.R. 1955, the employer terminated the services of a Welfare Officer on the ground that be had refused to accept an order of transfer. In that case under the Punjab Welfare Officer Recruitment and Conditions of Service Rules 1952 made under Sections 49 and 112 of the Factories Act it was provided that a punishment could not be inflicted on him without the Labour Commissioner and against such punishment or refusal to Impose punishment by the Labour Commissioner appeal lay to the State Government. It was held that although the impugned order could not necessarily determine the character of the termination of service and it was open to the Court to consider the substance of the matter and not treat the form in which the order terminating the services has been passed as conclusive. It was pointed out that cases may occur in which the order of discharge is a bona fide order and the employer passed such an order because it was not its intention to cast any slur on Its employee even though it thought necessary to terminate his services. Accordingly it was held that the order of termination was not by way of punishment. Bachawat, J. agreeing with ths majority view further observed that as the order of the management did not entail any evil consequence it was not an order of punishment and the respondent was not entitled to appeal from the order terminating his services to the State Government nor was the State Government entitled to order his reinstatement. 16. On a consideration of all these cases it appears that in cases of termination in accordance with contract, there is always a reason of motive behind such termination, but if such termination does not visit the employee with evil consequence then it is not necessarily a case of punishment, and in each case it has got to be determined by talcing into account all the attending circumstances whether it was a case of termination slmplicitor or punishment. 17. In the instant case as I have stated earlier the termination was the result of loss of confidence. It appears that the respondent No. 3 had to conduct certain test on 23.9.1978 for the recruitment of temporary Stenographers in which 37 candidates had appeared. 17. In the instant case as I have stated earlier the termination was the result of loss of confidence. It appears that the respondent No. 3 had to conduct certain test on 23.9.1978 for the recruitment of temporary Stenographers in which 37 candidates had appeared. In conducting the test the respondent No. 3 did not follow the established practice and made a departure from it and on his own initiative selected a passage and also selected a person from the Employment Bureau to take the test despite the contrary advice. One Sri G.B. Prasad was directed to give the dictation. The passage in a sealed cover was given to Sri Prasad on the evening of 22.9.1979. On 23.9.1979, before dictating the passage Sri Prasad made three changes in the original passage, namely for word knew was changed to knows, the word world changed to word and the word obfuscate was changed to confuse. The entire passage was dictated as one paragraph, although the passage in the sealed cover was in two para graphs. Sri Prasad found that amongst the candidates who took the test all had failed, miserably except two candidates. These two had re-produced the original passage without the above mentioned modification. In other words they had used the words knew world and obfuscate; and they had also surprisingly enough written it in the two paragraphs as was in the original. Sri Prasad therefore, reported this to the Assistant Superintendent of Employment Bureau pointing out that there were strong suspicion to show that the passage had been leaked out earlier. Respondent No. 3 did not report this incident to the higher authorities, who came to know about it on a confidential information. Later on the two candidates Sajjad Alam and Md. Shamim Khan who had correctly written the two passages were called for a further test in which they had failed miserably. It was, therefore, concluded that the original passages had been passed on to Sri Alam and Khan earlier, and as no one else knew about it except Sri G.B. Prasad and the respondent No. 3, it was concluded that the respondent No. 3 had leaked out the passages, as Sri Prasad could not have done it having reported the matter. In such circumstances the Management by the Impugned order, a couple of days later, terminated the services of respondent No. 3. 18. In such circumstances the Management by the Impugned order, a couple of days later, terminated the services of respondent No. 3. 18. Before the Labour Commissioner when the appeal was being heard he had enquired from the Management as to why it has lost confidence in respondent No. 3 to which a reply had been given stating the aforesaid facts which is borne out by Annexure 9. The Labour Commissioner on a consideration of this fact has come to the conclusion that as the termination was the result of loss of confidence it amounted to punishment. Mr. Chatterjee has submitted that it was true that loss of confidence was the motive or the reason behind the termination of the services but as the termination did not cast any stigma it was not a case of punishment. He further submitted that there is nothing to show that the Management had any ill will towards the respondent No. 3, On the contrary the respondent No. 3, during his service under the Management, had been promoted on various occasions. Therefore, taking into account his length of services and his earlier performances the Management chose to simply terminate the services of the respondent No. 3 under the terms of contract of his service and did not impose the punishment upon him as is visualised in Rule 5(4) of the Rules. 19. Mr. Prasad on the other hand submitted that as immediately after this incident the services of respondent No. 3 were terminated and it was a case of punishment and not of simple termination. I have already pointed out above that in every case of termination of service under terms of contract there is a motive or reason, but that by itself would not show that every such termination of service is by way of punishment. In the instant case there appears to be reasonable grounds to hold that the employer had lost confidence in respondent No. 3 and in such circumstances exercised its right under the terms of contract to terminate his services, and such termination is without any stigma. I am, therefore, of the view that the termination of the services of the respondent No. 3 was not by way of punishment but was a termination simplicitor under the contract of service. 20. I am, therefore, of the view that the termination of the services of the respondent No. 3 was not by way of punishment but was a termination simplicitor under the contract of service. 20. I have already pointed out above that the jurisdictional fact on which the Labour Commissioner can entertain an appeal by a Welfare Officer is that the Welfare Officers discharge or termination of services was by way of punishment. In the instant case the termination not being by way of punishment, the Labour Commissioner acted without jurisdiction in passing the impugned order. 21. The third submission of Mr. Chatterjee was that Rule 5(4) of the Rules is ultra vires. In support of this submission reliance had been placed upon a Bench decision of this Court in the case of Jugal Kishore V/s. Labour Commissioner -- in which Sec.26(2) of the Bihar Shops and Establishment Act, 1954, as it stood before the amendment, was struck down. In the view that I have taken it is not necessary to consider and decide this submission. In the result the application is allowed and the impugned order of the Labour Commissioner is quashed. But in the circumstances of the case I would make no order as to costs. A.Singh, J. 22 I agree.