TMI Blog1992 (5) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act and it can be decided on the basis of the relevant provisions of the Act without going into the facts of each case, we do not consider it necessary to set out the facts. 3. Section 25-N forms part of Chapter V-B which bears the heading Special provisions relating to lay-off, retrenchment and closure in certain establishments . The said Chapter consists of Sections 25-K to 25-S and was inserted by the Industrial Disputes (Amendment) Act, 1976 (Act No. 32 of 1976), hereinafter referred to as 'the 1976 Act', with effect from March 5,1976. Section 25-K, as originally enacted, confined the applicability of the provisions of Chapter V-B to industrial establishments in which not less than 300 workmen were employed on an average per working day for the preceding twelve months. Section 25-M makes provision for prohibition of lay-off. Section 25-N prescribes the conditions precedent to retrenchment of workmen. Section 25-O prescribes the procedure for closing down an undertaking. Section 25-P contains special provision as to restarting of undertakings closed down before commencement of the 1976 Act. Section 25-Q imposes the penalty on the employee for contravention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de in Section 25-K, the number of workmen required for applicability of the provisions of Chapter V-B to an industrial establishment was reduced from 300 to 100. In 1984, Parliament enacted Industrial Disputes (Amendment) Act, 1984 (Act No. 49 of 1984) whereby Section 25-N was substituted and amendment was also made in Section 25-Q. In this group of cases, we are concerned with the validity of the provisions of Section 25-N, as originally enacted, i.e., before the same was substituted by Amendment Act of 1984. 7. Since strong reliance has been placed by the Madras High Court and Rajasthan High Court on the decision of this Court in Excel Wear case (supra), we consider it necessary to refer to the said decision before we proceed to deal with the submissions of the learned Counsel. As indicated earlier, in Excel Wear case (supra), this Court was required to consider the validity of Section 25-O, as originally enacted, i.e., prior to its substitution by Amendment Act of 1982, which read as under: (1) An employer who intends to close down an undertaking of an industrial establishment to which this Chapter applies shall serve, for previous approval at least ninety days before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecified in the order. (7) Where an undertaking is approved or permitted to be closed down under Sub-section (1) or Sub-section (4), every workman in the said undertaking who has been in continuous service for not less than one year in that undertaking immediately before the date of application for permission under this section shall be entitled to notice and compensation as specified in Section 25-N as if the said workman had been retrenched under that section. On an analysis of the said provisions, this Court pointed out: i) Under Sub-section (1), if in the opinion of the appropriate Government, the reasons for the intended closure were not adequate and sufficient or if the closure was prejudicial to the public interest, permission to close down may be refused; and though the reasons given may be correct, yet permission could be refused if they were thought to be not adequate and sufficient by the State Government; ii) No reason was to be given in the order granting the permission or refusing it; iii) The appropriate Government was not enjoined to pass the order in terms of Sub-section (2) within 90 days of the period of notice, although under Sub-section (4) in a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capriciously; (ii) if the Government order was not communicated to the employer within 90 days, strictly speaking, the criminal liability under Section 25-F may not be attracted if on the expiry of that period he closes down the undertaking, but the civil liability under Section 25-O(5) would come into play even after the passing of the order of refusal of permission to close down on the expiry of the period of 90 days; and (iii) the order passed by the authority was not subject to any scrutiny by any higher authority or tribunal either in appeal or revision and the order could not be reviewed either. 10. The fact that Chapter V-B deals with certain comparatively bigger undertakings and of a few types only was, however, held to be a reasonable classification for the purpose of Article 14 of the Constitution. 11. At this stage, it would be convenient to set out the impugned provisions of Section 25-N which provided as under: 25-N. Conditions precedent to retrenchment of workmen - (1) No workman employed in any industrial establishment to which this Chapter applies, who has been in continuous service for not less than one year under an employer shall be retrenched by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermission under Clause (c) of Sub-section(1) is made, or where no application for permission under Sub-section (4) is made within the period specified therein or where the permission for the retrenchment has been refused, such retrenchment shall be deemed to be illegal from the date on which the notice of retrenchment was given to the workman and the workman shall be entitled to all the benefits under any law for the time being in force as if no notice had been given to him. (7) Where at the commencement of the Industrial Disputes (Amendment) Act, 1976, a dispute relating, either solely or in addition to other matters, to the retrenchment of any workman or workmen of an industrial establishment to which this Chapter applies is pending before a conciliation officer or the Central Government or the State Government, as the case may be, and - (a) there is an allegation that such retrenchment is by way of victimisation; or (b) the appropriate Government is of the opinion that such retrenchment is not in the interest of the maintenance of industrial peace, the appropriate Government, if satisfied that it is necessary so to do, may, by order, withdraw such dispute or, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n days from commencement of the 1976 Act and in Sub-section (4) it was provided that where an application for permission had been made under Sub-section (3) and the appropriate Government does not communicate the permission or the refusal to grant the permission to the employer within a period of two months from the date on which the application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of two months. This provision was similar to that contained in Sub-section (4) and (5) of Section 25-N. There was, however, no provision in Section 25-O similar to that contained in Sub-section (3) of Section 25-N. 13. Some of these distinguishing features between Section 25-M and 25-N on the one hand and Section 25-O, on the other hand, have been mentioned, by way of contrast, by this Court in Excel Wear case (supra) in the following observations: Section 25M dealt with the imposition of further restrictions in the matter of lay-off. Section 25-N provided for conditions precedent to retrenchment of workmen. In these cases the vires of neither of the two sections was attacked. Rather, a contrast was made between the said provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lishment and, therefore, the right to retrench workmen is an integral part of the right to carry on the business. In support of this submission reliance is placed on the decision in Excel Wear case (supra) where right to close the business has been held to be an integral part as the right to carry on business under Article 19(1)(g). It is submitted that the right to retrench the workmen stands on a higher footing than the right to close the business because in the case of retrenchment, the business is continuing and only a part of labour force is dispensed with. On behalf of the workmen, Shri Ramamurthi, on the basis of the decisions of this Court in All India Bank Employees' Association v. National Industrial Tribunal (1961)IILLJ385SC and Maneka Gandhi v. Union of India [1978]2SCR621 , has drawn a distinction between a right which is an integral part of the right to carry on business and a peripheral or concomitant right which facilitates the exercise of a named fundamental right or gives it meaning and substance or makes its exercise effective, but is itself not a guaranteed right included within the named fundamental right. The submission Shri Ramamurthi is that the right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that shareholder, although a member, is in economic reality, a mere lender of capital on which he hopes for return but without any effective control over the borrower. (See: Gower's Principles of Modern Company Law, 4th Ed., p.9) 20. In view of the fact that some of the grounds for challenging the validity of Section 25-N on the ground of violation of Article 19 can also be made the basis for challenging the ground of violation of Article 14, we do not consider it necessary to go into the question whether the right to retrench the workmen is an integral part of the right of the employer to carry on the business or it is only a peripheral or concomitant right which facilitates the exercise of the said fundamental right to carry on the business and we will proceed on the assumption that the right to retrench the workman is an integral part of the fundamental right of the employer to carry on the business under Article 19(1)(g). For the same reason we are not inclined to rule out the challenge to the validity of Section 25-N on the ground that a company, incorporated under the Companies Act, being not a citizen, cannot invoke the fundamental right under Article 19 and the share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strial dispute and have it referred for adjudication under the provisions of the Act. In 1953 by Act No. 43 of 1953 Clause (oo) in Section 2 defining the term retrenchment and Chapter V-A (containing Sections 25-A to 25-J) relating to lay-off and retrenchment were inserted in the Act. By Section 25-F it was prescribed that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until (a) the workman has been given one months' notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice, wages for the period of notice; (b) the workman has been paid at the time of retrenchment compensation equivalent to 15 days' average pay for every completed year of service or any part thereof in excess of six months and (c) a notice in the prescribed manner is served on the appropriate Government. Section 25-G prescribed that the employer shall ordinarily retrench the workman who was the last person to be employed in that particular category to which he belongs unless for reasons to be recorded the employer re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployer could be questioned was by raising an industrial dispute and having it referred for adjudication to the Industrial Tribunal/Labour Court which process took considerable time and during this period the affected workman was left without the source of livelihood. The problem was considerably aggravated in case of establishments having a large labour force wherein a larger number of workmen could be retrenched involving hardship on a larger section of the labour force creating an industrial unrest and disharmony. By requiring prior scrutiny of the reasons for the proposed retrenchment in industrial establishments employing not less than 300 workers, Section 25-N seeks to prevent the hardship that may be caused to the affected workmen as a result of retrenchment because, at the commencement of his employment, a workman naturally expects and looks forward to security of service spread over a long period and retrenchment destroy his hopes and expectations. The retrenched workman is, suddenly and without his fault, thrown on the street and has to face the grim problem of unemployment. See: The Indian Human Pipe Co. Ltd. v. The Workmen, 1960 (2) SCR 32. Often the workman is retre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial or otherwise, work, a living wage, conditions of work ensuring decent standard of life and full enjoyment and leisure and social and cultural opportunities. Keeping the aforesaid provisions in view, this Court, in Olga Tellis v. Bombay Municipal Corporation, 1985 (2) SCR 51 has observed- If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21. (p.80) 24. In this case, reference has been made to following observations of Douglas, J. in Barsky v. Board of Regents of New York 347 US 442: The right to work, I had assumed was the most precious liberty that man possesses. Man has indeed as much right to work as he has to live, to be free, to own property.... To work means to eat. It als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given for retrenchment of a workman in an industrial establishment covered by Section 25-K and falling within Chapter V-B is three months instead of one months' notice required under Section 25-F. The need for a period of notice is indicated by Sub-section (3) of Section 25-N because within a period of three months from the date of service of the said notice, the appropriate Government or authority is required to communicate the permission or refusal to grant the permission for retrenchment to the employer after making such enquiry as it thinks fit under Sub-section (2). The consequence of failure to keep this time schedule is indicated in Sub-section (3) wherein it is provided that in case the Government or authority does not communicate the permission or the refusal to grant the permission to the employer within three months of the date of service of the notice, the Government or the authority shall be deemed to have granted the permission for such retrenchment on the expiration of the said period of three months. The change which has been brought about by Sub-section (2) of Section 25-N is that instead of an adjudication by a judicial tribunal into the validity and justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry though the precise nature of the enquiry that is to be made is left in the discretion of the appropriate Government or authority and further that the order that is passed by the appropriate Government or authority must be a speaking order containing reasons. The requirement to make an enquiry postulates an enquiry into the correctness of the facts stated by the employer in the notice served under Clause (c) of Sub-section (1) of Section 25-N for retrenchment of the workmen and other relevant facts and circumstances including the employer's bonafides in making such retrenchment and such an enquiry involving ascertainment of relevant facts will necessarily require affording an opportunity to the parties viz. the employer and the workmen, who have an interest in the matter, to make their submissions. In this context, reference may be made to Rule 76-A of the Industrial Disputes (Central) Rules, 1957 framed by the Central Government under the Act. Sub-rule (1) requires that the notice required to be given under Clause (c) of Sub-section (1) of Section 25-N shall be served in Form P-A. Sub-rule (3) requires that the copy of the said notice or the application shall be served by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o in the last three years, including dates of retrenchment, the number of workmen involved in each case, and the reasons therefore (Item No. 16); anticipated savings due to the proposed retrenchment (Item No. 19); any proposal for effecting savings on account of reduction in managerial remuneration, sales promotion cost and general administration expenses (Item No. 20); position of stocks on the last day of each of the month in the preceding twelve months (Item No. 21); annual sales figures for the last three years and month-wise sales figures - for the preceding twelve months both item-wise and value-wise (Item No. 22); and reasons for the proposed retrenchment (Item No. 23). 30. It would thus appear that the employer is required to furnish detailed information in respect of the working of the industrial undertaking so as to enable the appropriate Government or authority to make up its mind whether to grant or refuse permission for retrenchment. Before passing such order, the appropriate Government or authority will have to ascertain whether the said information furnished by the employer is correct and the proposed action involving retrenchment of workmen is necessary and if so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... men proposed to be retrenched. In that event, it would be permissible for the appropriate Government or authority to grant permission for retrenchment of only some of the workmen proposed to be retrenched and to refuse such permission for the rest of the workmen. 32. As regards the factors which are to be taken into consideration by the appropriate government or authority while exercising its power under Sub-section (2) of Section 25-N, Shri Nariman has urged that since no indication about these factors is given in Sub-section (2), it should be held that Parliament did not intend to alter the existing law governing retrenchment and the principles of industrial law that are applied by Industrial Tribunals for examining the validity of retrenchment under Section 25-F would also be applicable in the matter of exercise of power under Sub-section (2) of Section 25-N. In this context, Shri Nariman has submitted that the law governing retrenchment is well-settled by the decisions of this Court in D. Macropollo Co. (Pvt) Ltd. v. Their Employees' Union and Ors. 1958 (2) LU 492; Workmen of Subong Tea Estate v. The Outgoing Management of Subong Tea Estate and Anr. (1964)ILLJ333SC and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Management of Bharat Electronics Ltd. (1981)IILLJ70SC ; Management of Karnataka, State Road Transport Corporation v. M. Boraiah and Anr. (1984)ILLJ110SC ; and Gammon India Ltd. v. Niranjan Das (1984)ILLJ233SC . The matter now stands concluded by the decision of the Constitution Bench of this Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh etc. v. Presiding Officer, Labour Court, Chandigarh, etc. (1966)IILLJ152SC .11 wherein the decision in State Bank of India v. N. Sundara Money (supra) SCR and subsequent decisions have been approved and it has been held that retrenchment, as defined in Section 2(oo), means termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action and those expressly excluded by Clauses (a), (b) and (c) of the definition. In view of these decisions, it cannot be said that retrenchment means termination by the employer of the service of a workman as surplus labour and, therefore, the law that was laid down by this Court in D. Macropollo Co.'s case (supra), Workmen of Subong Tea Estate's case (supra) and Parry Co.'s case (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urged that the two circumstances referred to in Sub-section (7), viz., retrenchment being by way of victimisation or the retrenchment not being in ; the interest of maintenance of industrial peace, can be treated as the factors which are required to be taken into account by the appropriate Government or authority while exercising its powers under Sub-section (2). This contention, in our opinion, proceeds on a misconception of the scope of the provisions contained in Sub-section (2) and Sub-section (7) of Section 25-N. As noticed earlier, Sub-section (2) deals with a stage prior to retrenchment whereas Sub-section (7) deals ; with a stage after retrenchment. Sub-section (7) seeks to provide for disposal of industrial disputes arising due to retrenchment of workmen where either of the two conditions laid down in Sub-section (7) is satisfied and which were pending at pre-reference stage on the date of commencement of the 1976 Act, by an authority specified by the appropriate Government instead of an Industrial Tribunal. Industrial disputes which do not fulfil either of these two conditions will have to be adjudicated by the Industrial Tribunal after reference. The two conditions laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onciliation Officer, in exercise of powers conferred on him by Clause 29 of the order issued in 1954 by the Governor of U.P. under the U.P. Industrial Disputes Act, 1947, granted permission in respect of only 11 workmen but refused such permission in respect of others and the question was whether the Conciliation Officer was a tribunal and an appeal lay in this Court against the order under Article 136 of the Constitution. this Court held that though the Conciliation Officer was required to act judicially in granting or refusing to grant permission to alter the terms of employment of workmen at the instance of the employer but he was not invested with the judicial power of the State and he could not be regarded as a tribunal within the meaning of Article 136 of the Constitution and, therefore, an appeal under that Article was not competent against the order passed by the Conciliation Officer. The position of the appropriate Government or authority functioning under Sub-section (2) of Section 25-N is not very different. We are, therefore, of the view that although the appropriate Government or authority is required to act judicially while granting or refusing permission for retrench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... big or small, was required to be judicially determined by industrial tribunals/labour courts by following the normal judicial procedure and that as a result of the enactment of Section 25-N retrenchment of workmen in industrial establishments to which the said provisions are applicable will be examined by the appropriate Government or authority specified by the appropriate Government and the said authority can be any officer who need not be trained in law. It was pointed out that Section 25-N does not give any indication about the status and qualifications of the officer who would be entrusted with the power to grant or refuse permission for retrenchment of workmen under Sub-section (2) and it is left to the unguided discretion of the appropriate Government to nominate any officer as the authority entitled to exercise this power. 38. This contention may be divided into two parts. The first part relates to conferment of the power to grant or refuse permission for retrenchment of workmen under Sub-section (2) of Section 25-N on the executive instead of the industrial tribunals/labour courts who were earlier exercising the power to examine the validity of such retrenchment. The sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aling with Section 2(1)(a) of the Punjab Special Powers (Press) Act, 1956, which use the expression the State Government or any authority so specified in this behalf . The validity of the said provision was assailed on the ground that it gave unfettered and uncontrolled discretion to the State Government or to the officer authorised by it and reliance was placed on the earlier decision of this Court in Dawarka Prasad Laxmi Narain v. The State of Uttar Pradesh [1954]1SCR803 . Rejecting the said contention, this Court held: In the first place, the discretion is given in the first instance to the State Government itself and not to a very subordinate officer like the licensing officer as was done in Dwaraka Prasad's case (supra). It is true that the State Government may delegate the power to any officer or person but the fact that the power of delegation is to be exercised by the State Government itself is some safeguard against the abuse of this power of delegation.'' (p.321) 41. It has, however, been submitted that in Virendra's case (supra), this Court struck down Section 3(1) of the said Act which also used the same expression, viz., the State Government or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the authority while refusing or granting permission under Sub-section (2) and have found that the said power is not purely administrative in character but partakes exercise of a function which is judicial in nature. The exercise of the said power envisages passing of a speaking order on an objective consideration of relevant facts after affording an opportunity to the concerned parties. Principles or guidelines are insisted with a view to control the exercise of discretion conferred by the statute. There is need for such principles or guidelines when the discretionary power is purely administrative in character to be exercised on the subjective opinion of the authority. The same is, however, not true when the power is required to be exercised on objective considerations by a speaking order after affording the parties an opportunity to put forward their respective points of view. That apart, it cannot be said that no guidance is given in the Act in the matter of exercise of the power conferred by Sub-section (2) of Section 25-N. 43. The said power conferred under Sub-section (2) of Section 25-N has to be exercised keeping in view the provisions of the Act and the object under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g impermissible elements in the matter of exercise of the power to grant or refuse permission for retrenchment inasmuch as the order for grant or refusal of permission for retrenchment is only to be based on the relevant circumstances as laid down by this Court, namely, that the action of the employer is bona fide and is not actuated by victimisation or unfair labour practice. The submission is that retrenchment would always be prejudicial to the interests of the workmen and if the interests of workmen are to be taken into consideration permission for retrenchment will never be granted. We are unable to agree. Assuming that the factors mentioned in Sub-section (3) of Section 25-N as substituted by Amending Act 49 of 1984, are declaratory in nature and are required to be taken into consideration by the appropriate Government or the authority while passing an order under Sub- section (2) of Section 25-N, as originally enacted, it is not possible to hold that the interests of the workmen is not a relevant factor for exercising the said power. As pointed out by Prof. Gower in his Treatise on Principles of Modem Company Law: In so far as there is any true association in the modern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty for all and every endeavour shall be made to promote fraternity ensuring the dignity of the individual. (p.945-946) 46. In the same case, Chinnappa Reddy, J., in his concurring judgment, has stated: The movement is now towards socialism. The working classes, all the world over, are demanding workers' control and 'Industrial Democracy'. They want security and the right to work to be secured. They want the control and direction of their lives in their own hands and not in the hands of the industrialists, bankers and brokers. Our Constitution has accepted the workers entitlement to control and it is one of the Directive Principles of State Policy that the State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry. It is in this context of changing norms and waxing value that one has to judge the workers' demand to be heard. (p.958) 47. Similarly, Baharul Islam, J. has observed: Our 'Democratic Republic' is no longer merely 'Sovereign' but is also 'Socialist' and 'Secular'. A Dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an administrative authority by itself serves a salutary purpose, viz., it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making (p.612). 50. For the reasons aforesaid, contention II is rejected. RE : CONTENTION III 51. It was urged by the learned Counsel appearing for the employers that no provision has been made for an appeal or revision against the order passed by the appropriate Government or authority granting or refusing permission for retrenchment of workmen under Sub-section (2) of Section 25-N, nor is there any provision for review and that Section 25-N suffers from the same infirmity as was found by this Court in Section 25-O in Excel Wear case (supra). It was also urged that the remedy of judicial review under Article 226 of the Constitution is not an adequate remedy inasmuch as the scope of judicial review under Article 226 of the Constitution is very limited and does not enable challenge on the ground of an error of fact in the impugned order. In this context, reliance is also placed on the decision of this Court in State of Bihar v. K.K. Misra and Ors. [1970]3SCR181 . In our opinion, the decisions in Excel Wea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred may indicate that the power so conferred is unreasonable or arbitrary but it is obvious that providing such corrective machinery is only one of the several ways in which the power could be checked or controlled and its absence will be one of the factors to be considered along with several others before coming to the conclusion that the power so conferred is unreasonable or arbitrary; in other words mere absence of a corrective machinery by way of appeal or revision by itself would not make the power unreasonable or arbitrary, much less would render the provision invalid. Regard will have to be had to several factors, such as, on whom the power is conferred whether on a high official or a petty officer, what is the nature of the power of the authority or body on whom it is conferred or is it to be exercised objectively by reference to some existing facts or tests, whether or not it is a quasi-judicial power requiring that authority or body to observe principles of natural justice and make a speaking order etc.; the last mentioned factor particularly ensures application of mind on the part of the authority or body only to pertinent or germane material on the record excluding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of the Act. In G.B. Mahajan's case (supra), the appellants were seeking to challenge the action of the Municipal Council in awarding a contract for construction of a commercial complex under a scheme for financing the same which scheme was challenged as unconventional by the appellants. this Court, while refusing to interfere, observed that in the context of expanding exigencies of urban planning it will be difficult for the court to say that a particular policy option was better than another. The principle laid down in this decision has no bearing on the exercise of power under Sub-section (2) of Section 25-N as laid down by this Court. As pointed out in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. [1978]2SCR272 : Independently of natural justice, judicial review extends to an examination of the order as to its being perverse, irrational, bereft of application of the mind or without any evidentiary backing. (p.317) 55. The remedy of judicial review under Article 226 is, in our view, an adequate protection against arbitrary action in the matter of exercise of power by the appropriate Government or authority under Sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to a Tribunal for adjudication after the appropriate government or specified authority has passed an order granting or refusing to grant permission under Sub-section (6). Shri Ramamurthi, appearing for the workmen, has urged that reference of a dispute for adjudication to the Industrial Tribunal would depend on the discretion of the appropriate government and there is no right as such to approach the Industrial Tribunal. He has also pointed out that the power that is exercised by the appropriate Government or authority under Sub-section (2) of Section 25-N is similar to that exercised by the various authorities under Section 33 of the Act while giving approval to the action taken by the management in discharging or punishing a workman whether by dismissal or otherwise or altering the conditions of service of the workman. It has been submitted that in cases where such approval is given to the action of the management, it is open to the workmen to raise a dispute and have it referred for adjudication under Section 10 of the Act but no similar right is available to the management. 57. In order to validly retrench the workmen under Section 25-N, apart from obtaining permission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate Government. Since the expression industrial dispute as defined in Section 2(k) of the Act covers a dispute connected with non-employment of any person and Section 10 of the Act empowers the appropriate Government to make a reference in a case where an industrial dispute is apprehended, an employer proposing retrenchment of workmen, who feels aggrieved by an order refusing permission for retrenchment under Sub-section (2) of Section 25-N can also move for reference of such a dispute relating to proposed retrenchment for adjudication under Section 10 of the Act though the possibility of such a reference would be equally remote. The employer who feels aggrieved by an order refusing permission for retrenchment thus stands on the same footing as the workmen feeling aggrieved by an order granting permission for retrenchment under Sub-section (2) of Section 25-N inasmuch as it is permissible for both to raise an industrial dispute which may be referred for adjudication by the appropriate Government and it cannot be said that, as compared to the workmen, the employer suffers from a disadvantage in the matter of raising an industrial dispute and having it referred for adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
