9911796707
TMI Blog2009 (4) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... n under section 25-O (l)itself which is referred and once a Reference under section 25-O (5) is made, the order passed under sub-section (2) automatically gets eclipsed and achieves finality on the conclusion of the matter by the Tribunal. The Reference is not of the order but of the application. In Mahalaxmi Glass Works Pvt. Ltd. vs. State of Maharashtra and others, 2007 (III) CLR 43, the view stated was that the entire dispute was to be adjudicated where Reference is made and the order passed under section 25-O (2)allowing closure is kept in cold storage or in abeyance. ( 2. ) While finding it difficult to follow the principles stated by the learned Judges on the construction and interpretation of section 25-O of the Act in the matter of review and/or Reference, another Single Judge of this Court while referring to the provisions and scheme of the Act, decided to refer the matter for decision to a larger Bench. The respondents even raised an objection to the very maintainability of the present reference. It is contended that in the light of the dictum of law stated by a Full Bench of this Court in the case of Karim Abdul vs. Shehnaz Karim (2005) 5 Bom. CR 758, which is in line w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of this court with reference to the question referred in relation to the provisions of section 25-0 of the Act except Association of Engineering Workers vs. Indian Hume Pipe Company ltd. (supra ). Merely because the Courts have taken a view over a period of time, per se, is no ground for holding that the reference is not maintainable. It is said that judicial dissent in conformity with principles of judicial discipline and binding precedent helps in the development of law. It is a different matter what view the Court takes on the merits of the Reference. However, keeping in view the larger interest of administration of justice, importance of the legal questions framed in the order of Reference and the fact that there is every likelihood of these questions arising before the Courts as well as industrial Courts and the Government repeatedly, we find ourselves duty bound to provide answers to the questions formulated so as to settle the position of law as far as state of Maharashtra is concerned. ( 3. ) On 10th September, 2008, the learned Single Judge while expressing dissent to the view expressed by the three learned Single Judges as afore noticed, passed the following order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "25-O : (1 ). . . . . . . . . . (2 ). . . . . . . . . (3 ). . . . . . . . . . (4) An order of the appropriate Government granting or refusing to grant permission shall, subject to the provisions of sub-section (5), be final and binding, on all the parties and shall remain in force for one year from the date of such order. (5) The appropriate Government may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (2) or refer the matter to a tribunal for adjudication. Provided that where a Reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such Reference. " ( 4. ) The questions under consideration arise with Reference to the status of the order of the Government upon being passed and the status of the Order of the government once a Reference is made. According to the Judgments of the learned Single Judge, referred to above, since the Order of the Government is final and binding subject to the provisions of sub-section (5), the Order upon reference either becomes ineffective or is automatic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised in accordance with law. (7.) Registrar (Judicial) is directed to place the papers before the Hon'ble the chief Justice for seeking appropriate directions as may be required. "4. In the original petition, the petitioner has challenged the Order of the industrial Tribunal passed under section 25-O (5) of the Act, inter alia holding that under that section the Government can refer only the application for permission to close down the Undertaking and not the Order of the appropriate Government on such an application. Therefore, the Industrial Tribunal has not gone into the legality of the Order and has considered the application de novo as if the application was made to itself. 5. Since the order of Reference does not give complete facts, we consider it proper to refer to the basic facts giving rise to the passing of the above order. 6. The petitioner-company incorporated under the Companies Act, 1956 is engaged in the business of manufacturing and marketing of biscuits and related food products. Respondent No. 1 Trade Union is a registered union under the provisions of the Trade Unions Act, 1926 which represents the workmen employed in the factory of the petitioner-co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of two months from the date of the order. The petitioner-company was to maintain status quo in respect of the land, plant and machinery and factory of the Reay Road unit. Still another writ petition challenging the order making reference dated 5th April, 2004 was filed by the petitionercompany being Writ petition No. 1298 of 2004 which, however, on 12th July, 2004 itself was withdrawn with liberty to raise all the points before the Industrial Tribunal. In furtherance to the order of this Court as agreed between the parties, the proceeding before the Industrial tribunal continued wherein the parties filed the claim, written statement and rejoinder. During the pendency of the proceedings before the Industrial Tribunal, an application was filed to treat issue No. 5a before the Industrial Tribunal as preliminary issue as it related to the very maintainability of the Reference. This application came to be dismissed vide order dated 21st August, 2004 against which the petitioner filed Writ Petition No. 2424 of 2004 which was also dismissed. The petitioner preferred an appeal being Appeal No. 743 of 2004 which came up for hearing before the Division Bench on 30th November, 2004 and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such, there is no occasion for us to deliberate on those issues directly or even impliedly. ( 9. ) All the four questions framed by the learned Single Judge in the order of reference revolve around the interpretation of sub-section (2) and subsection (5) of section 25-O of the Act. Therefore, in order to notice the scheme under the Industrial disputes Act, it would be useful to refer to the relevant provisions of the Act and the rules framed thereunder. ( 10. ) It can hardly be disputed that section 25-O is a self-contained code. It provides how and in what circumstances the remedy can be invoked and as to how the application invoking such remedy would have to be dealt with. The appropriate government is obliged to pass an order thereupon and even the circumstances that are to be taken into consideration are stated in the provision. Such order granting or refusing the permission subject to the provisions of sub-section (5) becomes final and binding on all the parties and remains in force for a period of one year from the date of such order. Further, the section provides a right to the aggrieved party to file an application for review by the appropriate Government and/or Referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the interests of the general public and all other relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen. (3) Where an application has been made under sub-section (1) and the appropriate Government does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be, deemed to have been granted on the expiration of the said period of sixty days. (4) An order of the appropriate Government granting or refusing to grant permission shall, subject to the provisions of sub-section (5), be final and binding on all the parties and shall remain in force for one year from the date of such order. (5) The appropriate Government may, either on its own motion or on application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (2) or refer the matter to a tribunal for adjudication. Provided that where a Reference has been made to a Tribunal under this sub-section, it s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it/undertaking or an industrial establishment has to move an application, at least 90 days before the date on which the intended closure is to become effective, and seek prior permission. This application has to be moved to the appropriate Government and should clearly state the reasons for the intended closure. The representative of the workmen is also to be served with the copy of such application. Proviso to sub-section (1) of section 25-O itself states to which undertaking the provision will not apply. The application as contemplated under section 25-O (l), has to be moved in Form QA prescribed under the industrial Disputes (Central) Rules, 1957 which indicates the particulars which are required to be submitted by the employer in that application. It has to furnish details of the undertaking and reasons for closures are to be annexed with other minute details which are specified in the annexure itself. This shows that an employer is expected to provide details in relation to all aspects including number of workers, production, profit and losses, financial position, administrative, general and selling cost in absolute terms per year, position of stocks and the reasons which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iced, the appropriate Government is to grant a reasonable opportunity of being heard to the employer, workmen and even to the person interested in such closure. Reasonable opportunity of being heard clearly postulates a personal hearing and liberty to reasonably put forward one's point of view or case. Of course, the reasonableness of opportunity would normally depend upon the circumstances of a given case. It is not only that an opportunity should be granted but it is required to be reasonable. Reasonable opportunity of being heard would take within its ambit the right to lead and counter the various ingredients specified in section 25-O (l) as that alone will help the appropriate Government in arriving at correct conclusions upon due application of mind and pass a reasoned order in granting or refusing to grant such permission. To protect the interest of any of the affected parties, the Legislature in its wisdom has introduced restriction of time as regards filing, entertainment and time of decision on such applications. Wherever on an application filed under section 25-O (l), the order is not passed and communicated within 60 days from the date of such application by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contextual construction of statutory provisions. Provisions should take colour from their context and object while keeping pace with time. With particular Reference to sections 150 to 152 and 153 of that Act, which uses the phrase 'subject to' the Supreme Court interpreted the same as follows : "34. This brings us to the last submission of the appellants that there cannot be any recovery of the tax on the basis of the assessment list so published unless the appellants' objections were disposed of under section 151. We were at first inclined to hold in the appellants' favour. But a closer scrutiny of the provisions of the Act has persuaded us to reject the submission. Once we have held that the assessment list had been properly prepared, in the sense that there had been no legal flaw in its preparation and publication, the valuation as mentioned in the assessment list must be given effect to till the time it is revised or amended under section 151 or 152. In Shibji Khestshi tacker vs. Commr Of Dhanbad Municipality, it was said that valuation and assessment lists remain in force until they are altered or amended in accordance with the procedure laid down in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt lists pending disposal of the appellants' applications under section 151, until and unless, by virtue of an order under section 151 or 152 passed thereon, the assessment list is amended or altered. " ( 17. ) The phrase "subject to" other provisions, therefore, has to be given a reasonable interpretation and an interpretation which would carry out the intention of makers of the law and also avoid conflict and impracticability. In the light of these principles, all that can be said is that an order passed by the appropriate Government under section 25-O (2) shall be final and binding on all parties unless it is reviewed by the appropriate Government or is confirmed and/or disturbed by the Tribunal upon a Reference made to it by the appropriate Government in terms of section 25-O (5 ). What is the scope and meaning of the words "review" and "referred the matter to the Tribunal" is the other question that arises for consideration which we shall shortly proceed to discuss. ( 18. ) The proceedings before the appropriate Government while dealing with an application under section 25-O (l) and (2), are in the nature of a quasi-judicial inquiry, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewing its order, there is nothing in the statute to limit its jurisdiction or confine it within the rigors of Order 47 or even general principles of review vested in the Courts or Administrative tribunals. While passing an order on an application received under section 25-O (2), the appropriate Government takes various aspects into consideration and passes such order after conducting an inquiry and upon granting reasonable opportunity of being heard. There is nothing in the provision which restricts the discretion vested in the appropriate Government to reconsider the entire matter including holding of its inquiry and granting the parties a reasonable opportunity of being heard. Thus in the statutory but discretionary review jurisdiction, vested in it the appropriate government can affirm, change or even set aside its earlier order and decline permission for closure if granted earlier and vice versa. ( 19. ) What is to be reviewed by the appropriate government is the order passed earlier under sub-section (2) of section 25-O. The language of subsection (5) of section 25-O where it mentions of "review its order" makes it amply clear that the order passed earlier is the ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment and order under Appeal, read in its plenitude, also suspends the finding of corrupt practice. So much so, the disqualification also shares the same fate but there are a number of other privileges for a Member of Parliament which are left untouched by the Court's prior stay orders. The Supreme Court held that "the reasonable effect of a stay order is that there is plenary eclipse of the High Court's judgment and order during the pendency of the appeal, subject to the few restraints clamped down on an appellant. Those restraints are the second limb of the stay order and explicit enough. " That being the law even in regard to cases where specific stay orders are passed, then it will be difficult for the Court to accept the principle of automatic abeyance, eclipse or extinguishments. ( 21. ) In the case of Thirunavukkarasu Mudaliar (Dead) by LRs. vs. Gopal Naidu (Dead) by LRs. , (2006) 12 SCC 390, the Supreme Court took the view that a judgment and decree under appeal is binding on the parties even if it is challenged in appeal or revision unless it is stayed by a superior Court or is rendered ineffective as inoperative temporarily by a superior Court s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n allowed that the decree under review is vacated. Thereafter the matter is heard afresh and the decree passed therein, whatever be the nature of the new decree, would be a decree superseding the earlier one. The principle or logic flowing from the abovesaid decisions can usefully be utilised for resolving the issue at hand. Mere pendency of an application seeking leave to appeal does not put in jeopardy the finality of the decree or order sought to be subjected to exercise of appellate jurisdiction by the Supreme Court. It is only if the application is allowed and leave to appeal granted then the finality of the decree or order under challenge is jeopardised as the pendency of appeal reopens the issues decided and this Court is then scrutinising the correctness of the decision in exercise of its appellate jurisdiction. " ( 23. ) An order is a command, direction or instruction which generally embraces a final decree as well as an interim command. It mandates determination of matters directly or collaterally arising in an action. An order passed by the Court of competent jurisdiction or a Tribunal and for that matter even an administrative order passed by the Authority in exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the earlier order would stand merged and the field will be controlled by the subsequent order but it certainly does not mean that the order passed under section 25-O (2) becomes inoperative, dead or irrelevant for all purposes upon invocation of remedy under section 25-O (5 ). There appears to be no legislative intent which directly or otherwise indicates that the Legislature ever intended to render an order ineffective or inoperative much less non existent on a mere invocation of remedy of review or Reference. ( 26. ) It will also be not permissible to apply the doctrine of eclipse or abeyance without any specific indication in the statute itself or without judicial pronouncement to that effect. Some provisions of the Industrial Disputes Act provide a deemed fiction of law where a Reference is made to a National Tribunal. Under section 10 (6) (a) of the act where any Reference has been made to a National Tribunal in terms of sub-section (1a), no Labour Court or the Tribunal will have jurisdiction to adjudicate upon any matter which is under adjudication before the National Tribunal. This provision specifically provides that if the matter under adjudication before the National T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er alternative available to the Appropriate government i. e. where the Appropriate Government in terms of section 25-O (5) of the Act declines to review its own order and chooses to refer the matter to the tribunal for adjudication. ( 30. ) Obviously , the Tribunal has to enter into the field of adjudication and determine the issue before it in accordance with law. In this alternative remedy, the appropriate government refers the matter to the Tribunal for adjudication. The word "refer" would have the same meaning as it is understood in the industrial law. Under section 10 if the appropriate Government is of the opinion that an industrial dispute exists or is apprehended, it can make an order in writing referring the dispute to a board, Court or Tribunal. The word "refer" as per Concise Law Dictionary by P. Ramanatha Aiyar, (1997 Edition) (Edited by V,r. Manohar, Former Advocate general of Maharashtra) is to allude or direct attention to something or to send or direct for treatment, aid, information or decision. The appropriate Government has to apply its mind and then come to a conclusion whether it desires to review its order or make a Reference of the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before it issues a certificate. Ram Sahai vs. Ram Sevak, AIR 1956 All 321, 322 [constitution of India. Art. 135, 133]. ( 34. ) The expression "cause or matter" appearing in Article 142 (1) of the constitution of India was stated to be a very wide term covering almost every kind of proceeding in Court. The Supreme Court in Union Carbide Corporation and ors. vs. Union of India and ors. , (1991)4 SCC 584, held : "in Halsbury's Laws of England (4th den. , vol. 37, para 22) referring to the plenitude of that expression it is stated : "cause or matter. The words 'cause' and 'matter' are often used in juxtaposition, but they have different meanings. 'cause' means any action or any criminal proceedings and 'matter' means any proceedings in Court not in a cause. When used together, the words 'cause or matter' cover almost every kind of proceeding in Court, whether civil or criminal, whether interlocutory or final, and whether before or after judgment. " any limited interpretation of the expression "cause or matter" having regard to the wide and sweeping powers under Article 136 which Article 142 (1)seeks to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome to its own conclusion. ( 37. ) The decision of the State Government to close down the industrial unit is revisable only within one year from the date of the decision after which the government loses jurisdiction to permit invocation of remedy as contemplated under section 25-O (5)of the Act. Section 25-O (5) being a Code in itself is further controlled strictly by limitations and the period specified under the Act. Reference in this regard can also be made to a judgment of the Supreme Court in Vazir Glass Works Ltd. vs. Maharashtra general Kamgar Union, AIR 1996 SC 1282. Learned Counsel appearing for the respondents while relying upon the various parts of the above judgments argued that for the jurisdiction of the Tribunal and, for that matter, even in review, what is essential is to move only an application for closure and no other material would be available. Of course, this contention of the Respondents was vehemently opposed by the learned counsel appearing for the Petitioners. Reference was also made to the amendment by the State of Maharashtra to the provisions of section 25-O by Maharashtra Amendment act 3 of 1982. Amended provision of section 25-O (5) was introduced by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o give liberal construction to the expression "matter" so as to include application, proceedings or order before the appropriate Government to be referred to the Tribunal which as already noticed does not sit as a Court of Appeal to examine the validity, legality and correctness of the order passed by the appropriate Government but it is certainly a relevant piece of document to be considered by the Tribunal. The Tribunal has to arrive at its own conclusion after satisfying itself of the existence of pre requisites provided under section 25-O (5) of the Act. Adjudication before the Industrial Tribunal has to be a complete and full fledged inquiry in accordance with law and with complete liberty to the parties to prove their respective claims. ( 38. ) The jurisdiction of the Industrial Tribunal is controlled by the provisions of the Industrial Disputes Act. It has the trappings of a Court also for the purpose stated in the Act. The remedy before the Industrial Tribunal is adjudicatory and determinative after following the prescribed procedure and the nature of opportunity granted to the parties is somewhat different and distinct as that it is available to them before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction is quite different, in exercise of its power of review under section 25-6 (5), the appropriate government exercises its jurisdiction which on the face of it is limited to review its order. Upon a Reference, Industrial Tribunal conducts a full fledged inquiry by an adjudicating process and then finally comes to the conclusion on its own wisdom as to whether the ingredients of section 25-O (2) are satisfied or not and whether it should permit the unit or undertaking to close. The power of review exercisable by the appropriate Government would primarily be restricted to the record which led to passing of an order granting or refusing permission for closure while the Tribunal would be looking into the matter entirely afresh and in accordance with the prescribed procedure. The Tribunal applies the standard of judicial scrutiny and then has to pass an award which finally terminates the proceedings before it. The orders passed by the appropriate Government originally or in exercise of its power of review and for that matter even by the Tribunal upon a Reference are obviously subject to judicial review under Article 226 of the Constitution of India. That does not in any way i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is restricted by the provisions of the Act and the Rules as the purpose is to mitigate technicalities of law for achieving expeditious results on a Reference. This discretion, of course, has to be exercised in a manner and in accordance with settled principles of law. The procedure and practice before the Industrial Tribunal by now is well settled and is a comprehensive methodology for making of an award and it is expected to look into the pleadings, formulate points at issue and record findings after permitting the parties to adduce evidence and argue the matter. (Ref: o. P. Malhotra's "the Law of Industrial Disputes, 6th Edition ). ( 44. ) In the case of Orissa Textile and Steel Ltd. vs. State of Orissa and Others, (2002) 2 SCC 578, the Supreme Court held that the expression "may" appear in section 25-O (5) would have to be construed as must and the Government would have to pass an order in exercise of its power of review or make a Reference. In our view, the appropriate Government would have to make an inquiry into all necessary facts particularly the genuineness of the reasons stated by the employer. An opportunity of being heard would have to be given. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled by the prescribed procedure and in absence thereof by the established practice of determinative procedure of law. ( 48. ) We have already noticed that the provisions of section 25-O examined in their entirety do not in any way either by specific use of language or by necessary implication indicate anything which would persuade the Court to take the view that the order passed by the appropriate Government would stand excluded from the expression "matter" referred to in section 25-O (5 ). In our view, this expression would take in its ambit the complete proceedings before the appropriate Government. If the Government exercises its power of review in terms of section 25-O (5), it essentially has to have the order before it to review it and to say that the appropriate government while exercising the power of review under section 25-O (5) is debarred from looking into the records which resulted into passing of the final order would be opposed to any known cannons of legal procedure to be followed by the authorities performing quasi judicial functions. The application and the proceedings in furtherance thereto, while granting reasonable opportunity of being heard and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( 51. ) The unamended provisions of section 25-O were the subject matter of judicial decision in Excel Wear vs. Union of India and ors. , AIR 1979 SC 25, where the constitutionality of this provision was challenged on various grounds including that the provision does not require giving of reasons in the order, no time limits were prescribed, public interest was not taken into consideration, there were no guiding principles for exercising of powers by the Government, no remedy of appeal or review was provided, restrictions were more excessive than necessary and unreasonable. Some of these challenges were accepted by the Supreme Court which declared that section 25-O of the Act as a whole was unconstitutional, bad and invalid for violation of article 19 (l) (g) of the Constitution. The amended provisions of section 25-O as they exist on the statute book now came up for consideration as these provisions were also challenged on the ground that they were ultra vires the constitutional provisions. However, the Supreme Court in Orissa Textile and Steel Limited' case (supra), held that the amended section 25-O is not ultra vires the Constitution and its restriction is saved by Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... All that can be set out, in the section, are guidelines. These have been set out in the amended section 25- O. 25. xxxxx xxxxx xxxxx 26. We, therefore, hold that the amended section 25-O is not ultra vires the constitution. We hold that it is saved by Article 19 ( (6) of the Constitution. " ( 53. ) Other important observations which would support the views which are taken above are that the Supreme Court held that the appropriate Government before passing an order is bound to make an inquiry. The order to be passed by the appropriate Government has to be in writing and to contain reasons. The detailed information which the employer gives would enable the appropriate Government to make up its mind and collect necessary facts for the purpose of granting or refusing permission and the appropriate Government would have to ascertain whether the information furnished is correct and whether the proposed action is necessary and, if so, to what extent. The making of an inquiry, affording of an opportunity to the employer, the workmen and all interested persons and the necessity to pass a written order containing reasons envisages exercise of functions which are not purely administrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al dispute at all. A similar view was also expressed by the Supreme Court in the case of Workmen of the Indian Leaf Tobacco development Company Ltd. Guntur vs. The Management of India, Leaf Tobacco development Cop. Ltd. , Guntur, AIR 1970 SC 860, where the Supreme Court observed as under: "the closure of the 8 depots by the Company, even if it is held not to amount to closure of business of the Company, cannot be interfered with by an Industrial Tribunal if, in fact that closure was genuine and real. The closure may be treated as stoppage of part of the activity or business of the company. Such stoppage of part of a business is an act of management which is entirely in the discretion of the Company carrying on the business. No Industrial Tribunal even in a Reference under S. 10 (1) (d) of the Industrial disputes Act, can interfere with discretion exercised in such a matter and can have any power to direct a Company to continue a part of the business which the Company has decided to shut down. We cannot possibly accept the submission made on behalf of the appellants that a Tribunal under the industrial Disputes Act has power to issue orders directing a Company to reopen a clo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oses to exercise jurisdiction of review vested in it in terms of section 25-O (5), the order and the entire record has to be the basis for reviewing the order. This being a jurisdiction of review it makes it mandatory for the appropriate government to examine its order made earlier and if necessary, conduct such enquiry as it may deem necessary and then to finally decide whether it wishes to review its order and pass any other order as it may deem fit and proper in the light of the provisions of section 25-O (2 ). Existence of an order being a sine qua non for invocation of the remedy under section 25-O (5) and the wide scope of an enquiry before the Industrial Tribunal would further substantiate the view that the entire proceedings before the appropriate Government are deemed to be referred though for a limited question whether or not to grant permission to the employer to close the unit. It is true that the Maharashtra Amendment to section 25-O (4) did provide a right of appeal to the affected party against the order passed under sub-section (2 ). In appeal, the Tribunal after holding such enquiry as it may deem fit and as far as possible within 30 days from the date of filing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be referred is the matter and the question of legality of the order is not to be made subject matter of scrutiny by the Industrial tribunal and also that the proceedings of adjudication before the Tribunal are not to be long standing keeping in view the time limit provided under the Act. We are unable to read the observations of the Division Bench and in any case, it would not be the correct approach to hold that the Reference of the matter is limited alone to the application. The Division Bench has made no other observations and, in fact, none was called for in that case. The Court took the view that the Tribunal is functus officio and Reference lapses after the prescribed period. ( 63. ) The learned Single Judge in the case of Voltas Employees Union (supra), held that the Tribunal has to consider the application for closure de novo. The Court observed "therefore, the application for closure itself has been referred and not merely the order passed by the appropriate Government". This contributes to the view that the expression "matter" is wider and does not merely mean the order passed which has been referred, it includes the application as well. To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay cease to exist or would be ineffective in law only where it is so specifically stated in the statute and/or is an inevitable conclusion on the principles of implied necessity. The limitations and time period stated in the provisions of section 25-O (5) do not permit such an approach. We have discussed various judgments of the Supreme court and cannons of statutory interpretation in view of which we are unable to accept the view expressed in the above three judgments. ( 67. ) N 6 judgments or provisions have been brought to our notice which could demonstrate the intent of the Legislature to completely wipe out the proceedings and the order passed by the appropriate Government in exercise of its power under section 25-O (2) or make it ineffective at any point of time. The statute casts a great responsibility and expects an expeditious passing of award by the Industrial Tribunal, where the industrial Tribunal has to come to its own conclusions and record satisfaction by passing an award in terms of the ingredients of section 25-O (2 ). The tribunal is expected to be careful in observing the period specified under the provisions of section 25-O. Thus, it is expected that despite it ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
