Bombay High Court High Court

Mulund (E vs Ganpatrao Kadam Marg on 15 January, 2009

Bombay High Court
Mulund (E vs Ganpatrao Kadam Marg on 15 January, 2009
Bench: Ranjana Desai, K. K. Tated
                            1



MSS
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

             ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                       
                      APPEAL NO. 446 OF 2008




                                               
                                 IN

                WRIT PETITION NO. 1332 OF 2007




                                              
      PAINT EMPLOYEES UNION             )

      B-29, Jeevan Nagar,Mithagar Road

      Mulund (E), MUMBAI 400 081        )       APPELLANT




                                     
                                         (Org. Respondent)

             Versus
                        
      KANSAI NEROLAC PAINTS LTD.        )
                       
      Formerly known as Goodlass        )

      Nerolac Paints Ltd., having its)

      registered office at Nerolac      )
        


      House, P.O. Box No. 16322         )
     



      Ganpatrao Kadam Marg,             )

      MUMBAI 400 013.                   )        RESPONDENT
                                            (Orig.Petitioner)
 




      Ms. Meena Doshi for appellant
      Mr.   J.   P.   Cama with Mr. C.   U.          Singh        i/b
      Sanjay Udeshi & Co. for respondents.


                                CORAM:SMT.RANJANA DESAI &





                                      K. K.TATED, JJ.

                            DATE ON WHICH THE JUDGMENT IS
                            RESERVED :28TH NOVEMBER, 2008

                            DATE ON WHICH THE JUDGMENT IS
                            PRONOUNCED:15TH JANUARY, 2009




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    JUDGMENT:-(Per Smt. Ranjana Desai, J.)

    .    The appellant is the original respondent and the




                                                                                  
    respondent      is    the      original     petitioner         in     Writ




                                                         
    Petition      No.1332 of 2007.          The said writ          petition

    was filed by the respondent challenging order dated

    24/4/03      passed      by    the   Commissioner         of     Labour,




                                                        
    Maharashtra        State insofar as it dealt with                  review

    of earlier order dated 27/3/03.               It is necessary to




                                           
    begin with the facts of the case.



    2.     The
                             
                  respondent is a company registered                    under

    the    Companies Act, 1956 ("the respondent                    company"
                            
    for    convenience).           It has    various      manufacturing

    units      in different parts of the country.                  It had a

    manufacturing        unit at Lower Parel.          The       appellant
      


    is     a     registered        trade     union    and      has        been
   



    representing        the employees of the Lower Parel unit

    of    the    respondent        company since 1945.           It     is     a





    recognized         union       under    Chapter       II       of       the

    Maharashtra         Recognition        of    Trade      Unions          and

    Prevention      of    Unfair Labour Practices              Act,       1971





    ("MRTU & PULP Act" for short).               For convenience, we

    shall      refer    to    the appellant as        "the       appellant

    union.




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    3.     On    27/1/03,    the respondent company               made       an

    application        seeking      permission to close down               the

    Lower    Parel factory unit under Section 25-O of the




                                                                                 
    Industrial        Disputes Act, 1947 ("the said Act"                   for




                                                        
    short).       In    the application several             reasons        for

    proposed      closure    were noted.         It was stated           that

    the    financial condition of the Lower Parel factory




                                                       
    unit    had deteriorated to a great extent;                   that the

    Lower    Parel      factory unit as a whole had               incurred




                                          
    losses      of about Rs.320 lakhs in the first half                      of

    the    current      year;    that it is estimated that                 the

    same
                          
            trend would follow in the second half of                       the

    current      financial      year    and     that    there       are      no
                         
    chances      of revival of the unit.             This    application

    was    resisted by the appellant union.                 On    27/3/03,

    after    hearing      the    parties       the    Commissioner           of
      


    Labour      who    is the Specified Authority             under        the
   



    said    Act    ("Specified Authority" for               convenience)

    granted      permission      to the respondent           company         to





    close    down      the Lower Parel unit.           On 15/4/03          the

    appellant      union filed an application under Section

    25-O    (5)    of    the said Act seeking review                of     the





    order       dated    27/3/03      or   a    reference         to       the

    Industrial        Tribunal.      That application was opposed

    by the respondent company.




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    4.     The    Specified      Authority       passed       order          on

    24/4/03.       The Specified Authority observed that it

    was of the opinion that the appellant union had not




                                                                                 
    made    out    a    case for review of        the      order       dated




                                                        
    27/3/03      granting permission to effect the closure.

    The    Specified      Authority further observed that                    it

    had    gone through the submissions made by both                       the




                                                       
    parties      and    had come to the conclusion              that       the

    matter    needs      judicial     scrutiny.        The      Specified




                                           
    Authority,      therefore,       referred the        matter        under

    Section      25-O (5) of the said Act to the Industrial

    Tribunal.
                             
                            
    5.     The proceedings before the Industrial Tribunal

    were    held.      Parties filed their documents and                   led

    oral evidence.        Written submissions were also filed
      


    before    the      Industrial Tribunal.           The     respondent
   



    company raised objection as regards maintainability

    of    the reference under Section 25-O(5) of the said





    Act    on the ground that the review was rejected                        by

    the    Specified      Authority     and     the    reference           was

    consequentially          barred as the Specified            Authority





    did    not    have the power to adjudicate               the      review

    application        and    also   make   a    reference          to     the

    Industrial Tribunal.




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    6.     The    Industrial      Tribunal by its      order       dated

    5/5/07      refused permission to close down the               Lower

    Parel Factory Unit.        The reference was rejected and




                                                                             
    it   was held that the workmen were entitled to                    the




                                                    
    wages for the period from 2/5/03 onwards.



    7.     It    needs    to be noted at this stage           that       on




                                                   
    20/6/07       the    respondent     company     issued        notice

    informing individual workman that without prejudice




                                       
    to   its contention that the closure dated 2/5/03 is

    legal    and valid, it had decided to close down                   the

    Lower
                          
             Parel unit vide notice dated 20/6/07                 issued

    under    Section 25FF A of the said Act.             It     appears
                         
    that a separate complaint is filed by the appellant

    union    under the provisions of the MRTU & PULP Act,

    1971 in respect of the said notice.
      
   



    8.     Being      aggrieved    by the   award    dated        5/5/07

    passed       by     the   Industrial     Tribunal         refusing





    permission        to close down the Lower Parel unit, the

    respondent company filed Writ Petition No.                  1332 of

    2007    praying inter alia that the said award                 dated





    5/5/07 be quashed and set aside.



    9.     By    order dated 28/7/08 learned         Single        Judge

    made    the    Rule absolute in terms of prayer               clause




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    (a)    i.e.    he quashed and set aside the award dated

    5/5/07.       While    setting        aside the      award        learned

    Single    Judge observed that the Specified Authority




                                                                                   
    could    not have referred the matter to the Tribunal




                                                          
    in    exercise of its power under Section 25-O (5) of

    the    said Act, having rejected the application                         for

    review.        He    observed        that     the    power        of     the




                                                         
    Specified      Authority        to    deal with and         decide         an

    application      made      to it under Section             25-O      stood




                                              
    exhausted      on    the rejection of review               application

    and    a reference to the Tribunal thereafter was not

    competent.       The
                           
                            said order is challenged in                    this

    appeal.
                          
    10.     Mr.    Cama, learned counsel for the respondent

    raised    a preliminary objection.              He submitted that
      


    before    filing      the present appeal,            the      appellant
   



    union    had    filed Writ Petition No.              1794       of     2008

    challenging      order      dated      24/4/03      passed        by     the





    Specified Authority under Section 25-O(5) declining

    to    review    permission        granted       for      closure         and

    instead    referring        the      matter to      the     Industrial





    Tribunal      for    adjudication.          In that      petition          in

    paragraphs       b    to    e,       the    appellant       union        had

    contended      that    the order dated 24/4/03 is not                      an

    order     amounting        to    rejection       of      the        review




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    application         preferred by the appellant union.                 The

    appellant         union     withdrew those grounds         with       the

    permission         of the court.        Mr.   Cama submitted that




                                                                               
    by withdrawing the said grounds the appellant union




                                                       
    has     accepted the existence of the order of review,

    therefore,         the     appellant union is      estopped         from

    raising       a contention that the Specified              Authority




                                                      
    has not decided the review;               that there is no order

    passed       by    it    on     the    review   application         and,




                                            
    therefore,         the     reference     is validly     made.         The

    present appeal is, therefore, not maintainable.
                              
    11.      Ms.      Doshi, learned counsel for the appellant
                             
    union     on      the    other hand submitted       that       Section

    25-O(5)       grants       a statutory remedy to a party              who

    seeks review or reference.               Relying on the judgment
      


    of     the    Supreme Court in Orissa Textile and                 Steel
   



    Ltd.     v.        State      of Orissa, 2002 2     SC     578,       she

    submitted         that    this remedy is in addition to               the





    judicial review under Article 226 and Article 32 of

    the Constitution of India.               She submitted that Writ

    Petition No.         1794 of 2008 seeks judicial review of





    the    order       dated 24/4/03 without prejudice to                 the

    right    of       the    appellant union to file         an      appeal

    challenging         the impugned order.         Therefore, filing

    of Writ Petition No.               1794 of 2008 will not come in




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    the    way of the appellant union in prosecuting                         the

    present appeal.




                                                                                   
    12.     So    far    as    the     deletion      of      grounds           is




                                                          
    concerned,      Ms.       Doshi    submitted        that      the      said

    grounds      were    deleted      because      at    the      stage        of

    admission      of    Writ    Petition No.        1794 of          2008      a




                                                         
    contention      was    raised      by    the    counsel         for      the

    respondent      company that since learned Single Judge




                                           
    had    concluded      vide his judgment and              order       dated

    28th    July, 2008 in Writ Petition No.                  1332 of 2007

    that    the
                           
                   order of the Specified Authority                     was     a

    clear    rejection of a review, another writ petition
                          
    on    the    said    issue      could not      be    filed        by     the

    appellant       union.       Ms.        Doshi    submitted           that,

    therefore,      and    in view of the fact             that       learned
      


    Single       Judge    had    so     held,      he    permitted           the
   



    appellant      union      to withdraw the last sentence                    of

    paragraph      3 and grounds (b) to (e).               She submitted





    that,    learned Single Judge permitted her to                       raise

    these    grounds      in    the    present      appeal        memo       and

    accordingly she has raised them.





    13.     Though,      we find some substance in                Mr.Cama's

    argument,      we    do not want to go into              this       aspect

    because      in the circumstances of the case, we                      feel




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    that correct approach will be to deal with the case

    on    merits.      We    shall      deal with    the     appeal         on

    merits.




                                                                                
                                                       
    14.     Extensive       arguments      have been      advanced          by

    learned counsel for the parties.             We have carefully

    read    the    written submissions filed by              them.          We




                                                      
    shall deal with their submissions as we discuss the

    various issues which have been raised in this case.




                                          
    15.     Since we are concerned here with Section 25-O

    of
                            
          the Industrial Disputes Act, it is necessary to

    quote it.      Section 25-0, so far as it is relevant
                           
    for the present case reads as under:



    .       "25-O.        Procedure      for   closing         down         an
      


    undertaking.-(1)         An employer who intends to                 close
   



    down    an undertaking of an industrial establishment

    to    which    this     Chapter       applies    shall,        in     the





    prescribed       manner, apply, for prior permission                    at

    least    ninety      days     before the date on         which        the

    intended      closure     is to become effective,              to     the





    appropriate Government, stating clearly the reasons

    for    the intended closure of the undertaking and                       a

    copy    of    such    application shall         also     be      served

    simultaneously          on    the     representatives          of     the




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    workmen in the prescribed manner.

    .     Provided that . . . . .

    .    (2) Where an application for permission has been




                                                                                 
    made     under       subsection        (1),   the        appropriate




                                                        
    Government,        after making such enquiry as it thinks

    fit    and    after giving a reasonable opportunity                      of

    being    heard      to the employer, the workmen and                   the




                                                       
    persons      interested      in    such closure        may,       having

    regard      to    the   genuineness and       adequacy          of     the




                                          
    reasons      stated     by the employer, 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)            . . . . .
      


    .     (4)    An    order of      the   appropriate        Government
   



    granting      or    refusing      to grant    permission           shall

    subject      to    the provisions of subsection               (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 shall 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             subsection




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    (2)    or    refer      the    matter    to    a   Tribunal           for

    adjudication:

    .    Provided that where a reference has been made to




                                                                                
    a    Tribunal under this subsection, it shall pass an




                                                       
    award    within a period of thirty days from the date

    of such reference.

    .     (6)    Where no application for permission                  under




                                                      
    subsection      (1) is made within the period specified

    therein,      or   where the permission for closure                   has




                                           
    been    refused, the closure of the undertaking shall

    be    deemed    to be illegal from the date of                 closure

    and    the    workmen
                             igshall     be entitled      to     all      the

    benefits      under any law for the time being in force
                           
    as if the undertaking had not been closed down.

    .     (7)            . . . . .

    .     (8)            . . . . .
      
   



    16.     Before     we go to the rival contentions it                    is

    necessary       to      see    how    the    Supreme     Court        has





    interpreted Section 25-O(5).             At this stage it must

    be    noted    that there is no dispute about the                   fact

    that    Section      25-O(5) of the said Act is              in     pari





    materia with Section 25-N(6) of the said Act.



    17.     In     Engineering         Mazdoor    Sabha     v.         Addl.

    Commissioner       of    Labour & Ors., 2005 II            LLJ,       the




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    respondent         company       made   an     application              for

    permission         to     retrench      workmen.           The        said

    application        was    partly    allowed      by       the       Addl.




                                                                                  
    Commissioner        by    granting permission           to     retrench




                                                         
    only     276      workmen.       Against      that        order         the

    petitioner Mazdoor Sabha filed an application under

    Section      25-N(6) of the said Act for review of                      the




                                                        
    said    decision        or for reference of the matter                  for

    adjudication.           That application was rejected inter




                                           
    alia    on the ground that no new point was raised in

    the review proceedings which warranted examination.

    The    petitioner
                             
                             Mazdoor Sabha challenged the                 said

    order    in this court.          Learned Single Judge of this
                            
    court    was of the view that the Addl.                 Commissioner

    was    right in holding that no new point was                      raised

    in    the    review application.         Learned Single             Judge
      


    held    that      that    part    of    the    order       needs          no
   



    interference.        Learned Single Judge then considered

    whether the Addl.          Commissioner was obliged to make





    reference.         It was argued by the employer                 company

    that    once review application is rejected there was

    no    question      of making reference.         Learned           Single





    Judge    held      that    rejection of       prayer       of      review

    cannot      be    the    basis    to decline     the       remedy         of

    reference        as is provided in Section 25-N(6) of the

    said     Act.       Learned       Single     Judge,        therefore,




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    modified       the      order of the Addl.     Commissioner           by

    directing him to refer the matter for adjudication.

    That judgment was carried in appeal to the Division




                                                                              
    Bench.        The Division Bench concurred with              learned




                                                     
    Single       Judge      and dismissed the appeal.



    18.     The     judgment       of   the    Division    Bench        was




                                                    
    challenged         in    the Supreme Court.     It    was      argued

    before       the    Supreme     Court that    once    the      review




                                           
    application         was disposed of there is no scope               for

    further       making      a reference in view of       the      clear

    language
                             
                   of Section 25N(6) which provides for                 the

    alternative         and does not empower a reference after
                            
    the review petition is rejected.              The Supreme Court

    referred        to      its   earlier     decision    in       Orissa

    Textile's      case      (supra) and observed that in             that
      


    case    it    was considering the question whether                  the
   



    provision      of review and reference were in addition

    to    judicial review and it never said that they are





    cumulative         and not alternative.       The Supreme Court

    further held that had the legislature intended that

    the reference could be made after the Government or





    Specified Authority deals with the review power, it

    could    have said so specifically by specific words.

    It could have provided for a direct reference.                      The

    Supreme Court further observed that a plain reading




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    of    the provision makes the position clear that two

    courses      are    open.       Power      is    conferred          on     the

    appropriate        Government to either on its own motion




                                                                                     
    or    on    an    application made, review its                  order        or




                                                            
    refer      the matter to the Tribunal.              Whether one              or

    the    other of the courses could be adopted                        depends

    on     the    facts      of     each    case,      the       surrounding




                                                           
    circumstances        and several other relevant                   factors.

    In    the circumstances the Supreme Court allowed the




                                              
    appeal.



    19.
                             
            In view of the above clear enunciation of law

    there       need     not       be     any       debate        over         the
                            
    interpretation        of Section 25-O(5) of the said Act.

    The Specified Authority can on its own motion or on

    an    application        made      to it, review its            order        or
      


    refer      the matter to the Industrial Tribunal.                        Once
   



    review application is disposed of there is no scope

    for further making a reference.





    20.     It is now necessary to refer to the facts                            of

    this    case.      The appellant union has prayed in                       its





    application that the Specified Authority may review

    its    order      dated    27/3/03 granting          permission              to

    close      down    the    Lower      Parel       unit      or     in       the

    alternative         it    may      refer     the    matter          to     the




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    Industrial        Tribunal.        In the words of Ms.             Doshi

    counsel      appearing for the appellant union it is                      a

    consolidated         application      seeking    a review          or     a




                                                                                 
    reference under Section 25-O(5).              Ms.      Doshi argued




                                                        
    that    in the case of a consolidated application the

    Specified       Authority has to either say 'yes' to one

    prayer     and 'no' to another prayer.            She       submitted




                                                       
    that    in    this      case the     Specified    Authority            has

    decided      to refer the case.         There is no         categoric




                                          
    rejection       of     the   review     application.            It     has

    decided      to    choose one option i.e.         to      refer        the

    matter     to     the
                            
                             Industrial Tribunal.            Ms.       Doshi

    submitted that one cannot read one observation made
                           
    by   the     Specified Authority in          isolation          thereby

    ignoring      the      final   conclusion reached by              it     to

    refer    the matter.         Ms.    Doshi submitted that while
      


    considering        application under Section 25-O(5)                   the
   



    Specified       Authority      has    to    consider        the      same

    factors      which it has to consider while deciding an





    application          under        Section     25-O(2)           seeking

    permission        to close down an undertaking i.e.                    (a)

    whether      the     reasons are genuine (b)           whether         the





    reasons       are       adequate      (c)    whether          granting

    permission        is    in general public interest and                 (d)

    other relevant factors.             She submitted that in this

    case    the Specified Authority has not categorically




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    rejected          the    application.         It has stated that                 it

    was     of    the       opinion       that    judicial         scrutiny          is

    required           and     has       referred        the       matter          for




                                                                                         
    adjudication.            There is no finality to its order in




                                                                
    the     sense       that       the     order       indicates        that       the

    Specified          Authority was of the opinion that                       since

    judicial          scrutiny is required there is no need                          to




                                                               
    review       the order.          Mr.    Cama, learned counsel                  for

    the     respondent company on the other hand relied on




                                                 
    Cable    Corporation case (supra) and submitted                              that

    the     above argument of Ms.                 Doshi must be           rejected

    in    view        thereof.
                                ig   Relying on the Supreme                 Court's

    judgment          in     National       Insurance          Co.      Ltd.         v.
                              
    Mastan        &    Anr.         (2006)    2    SCC     641,       Mr.        Cama

    submitted that a party must in law elect one of the

    two     available remedies.              If it does not             expressly
      


    elect        in its application as to whether it seeks                            a
   



    review       or     a     reference it runs the              risk       of     the

    Government          taking up the matter by way of a review





    and     by    rejection thereof precluding an                       order        of

    reference.





    21.      It       is difficult to accept the submission                          of

    Ms.      Doshi          that    since        the    application           was     a

    composite          application, the Specified Authority has

    to say 'yes' to one prayer and 'no' to other.                                This




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    view     will       run    counter        to    the         authoritative

    pronouncement         of    the    Supreme          Court        in         Cable

    Corporation's         case     (supra).          At        the     cost         of




                                                                                        
    repetition, it must be stated that in that judgment




                                                               
    the     Supreme Court has referred to its judgment                              in

    Fakir    Mohd.        (dead) by Lrs.           v.     Sita Rani,            2002

    (1)    SCC 741, where it was held that the word                              'or'




                                                              
    is     normally disjunctive.             The use of the word 'or'

    in a statute manifests the legislative intention of




                                             
    the alternatives prescribed under law.                          The Supreme

    Court     has       observed      that     had       the        legislature
                              
    intended that the reference could be made after the

    Specified Authority deals with the review power, it
                             
    would     have said so specifically by specific words.

    It     could    have       provided for a           direct        reference.

    These     observations         of the Supreme Court                   make      it
      


    clear     that,       if the Specified Authority                   exercises
   



    its     review power it cannot make a reference.                               Now

    to     ascertain      whether       the    Specified            Authority's





    order     is    in consonance with the judgment                        of      the

    Supreme      Court in Cable Corporation's case                         (supra)

    or    not,     it    is necessary to           quote        the      relevant





    paragraphs of the Specified Authority's order dated

    24/4/03.       They read as under:



             .      "As    regards various prayers made                       by




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     the    Applicant        Union in the     review        and

     stay      application,       I have to state         that

     there      is no provision under Section 25-O




                                                                      
     of    the    Industrial Disputes Act,1947               to




                                              
     grant      such    prayers, therefore, I am             of

     the    opinion that various prayers made by

     the Applicant Union cannot be granted.                    I




                                             
     am     also    of    the      opinion,    that         the

     Applicant      Union has not made out a              case




                                    
     for review of the order dated 27/3/2003."



     .     I
                   
                have gone through the         submissions

     made      by both the parties in the           instant
                  
     matter      and    have come to the       conclusion

     that      the matter needs judicial scrutiny.

     Hence, I pass the following order:
      
   



                             ORDER

. The matter in the application dated

27/1/03 of M/s. Goodlas Nerolac Paints

Ltd., Ganpatrao Kadam Marg, Lower Parel,

Mumbai 400 013 under Section 25-O(1) of

the Industrial Disputes Act, 1947 seeking

permission of closure of its Lower Parel

Unit situated in the abovementioned

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19

address is hereby referred under Section

25-O(5) of the said Act to the Industrial

Tribunal, Mumbai consisting of Sou. S.

             V.      Ayarekar."




                                                     
    22.     There      is no dispute about the fact that                the

    reference        made by the Specified Authority in               it's




                                                    
    order    to      various prayers made in the          application

and its observation that for those prayers there is

no provision under Section 25-O of the said Act,

relate to prayers regarding interim relief. The

question

is whether the sentence “I am also of the

opinion, that the Applicant Union has not made out

a case for review of the order dated 27/3/2003”,

should be read as rejection of the prayer for

review or not. We have no doubt that when the

Specified Authority expresses its opinion, that no

case is made out for review, it exercises its

jurisdiction to deal with the review application

and rejects it. Merely because it does not

categorically state that review application is

rejected, it cannot be said that review application

is not rejected. The opinion expressed by the

Specified Authority is not worthless. The law

contemplates that, if it expresses that in its

opinion, no case for review is made out, the matter

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20

must end there. Once it expresses opinion, that no

case for review is made out the application cannot

be processed further. It is not possible to

interpret this order to mean that the Specified

Authority proceeded on the basis that since

judicial scrutiny is required it need not review

the order. In this case when the Specified

Authority expresses that no case for review is made

out, it is clear that it has applied its mind to

the rival contentions which it has reproduced in

detail and formed an opinion. It has dealt with

the application.

                            ig   It    has    exercised          its      review

    jurisdiction      and       rejected      it.       The       order          is
                          

susceptible to no other inference.

23. We must, however, record that in our opinion

the doctrine of election has no application here

and the reliance placed by Mr. Cama on National

Insurance Co’s case (supra) is totally misplaced.

In that case the court was considering two remedies

available to an injured workman to get

compensation. He is entitled for compensation

under the Workmen’s Compensation Act, 1923 and also

under the Motor Vehicles Act, 1988. Under Section

167 of the Motor Vehicles Act, 1988 the aggrieved

party has the option to elect either of them but

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21

not both. Observations of the Supreme Court will

have to be read against the background of these

facts. We are not concerned here with a provision

akin to Section 167 of the Motor Vehicles Act,

1988. The said judgment has, therefore, no

application to this case.

24. It is pointed out by Mr. Cama that before the

Tribunal, the appellant union had conceded that the

Specified Authority had decided the review

application on merits. This is recorded by the

Tribunal in its
igorder. In the impugned order

learned Single Judge has also said so. Mr. Cama

submitted that the appellant union is estopped from

taking a contrary stand now.

25. It is pertinent to note that in the statement

of claim filed by the respondent company in the

reference which was decided by the Industrial

Tribunal pursuant to the Specified Authority’s

order dated 24/4/03, the respondent company clearly

stated that the Specified Authority had rejected

the review application, however, in view of the

mandatory provision of Section 25-O of the said

Act, the Specified Authority had referred the

matter of permission for closure to the Tribunal.

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22

Even in its written arguments filed before the

Tribunal, the respondent company specifically

raised this contention. It is significant to note

that the appellant union in its written arguments

filed before the Tribunal stated that scope of

section 25-O(5) is akin to the powers of the

Tribunal under Section 10 of the said Act and as

such the Tribunal would have the same powers under

Section 25-O(5) of the said Act. Reliance was

placed by the appellant union on the judgment of

this court in Cable Corporation’s case. Obviously

it

is on this basis that the Tribunal observed in

its award dated 29/4/03 that it was not disputed

that the Specified Authority decided the review

application on merits.

26. It is equally important to note that in the

affidavit in reply dated 6/9/07 filed in Writ

Petition No.1332 of 2007, the appellant Union has

reiterated the same submission. Reliance is placed

on this court’s judgment in Cable Corporation’s

case. The point to note is that in paragraph 21 of

the Tribunal’s award, the Tribunal has recorded

that it is not disputed that the Specified

Authority decided the review application on merits.

In paragraph 6(1) of the affidavit in reply there

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23

is a reference to the said paragraph 21. However,

it is not stated that the appellant union had not

disputed that the review application was decided on

merits. On the contrary it is stated that the

contention raised by the respondent company that

after hearing the review application on merits, the

Specified Authority has no power to make reference

has been rejected by the Tribunal and this finding

cannot be characterized as misdirection in law on

the part of the Tribunal. It appears that after

considering the pleadings, more particularly the

affidavit in reply filed by the appellant union and

after hearing learned counsel for the parties,

learned Single Judge has observed in the impugned

order that it was not disputed before the Tribunal

that the Specified Authority has decided the review

application on merits. In our opinion, there is

strong basis for the above observation made by the

Tribunal as well as by learned Single Judge.

27. Ms. Doshi argued that no such concession was

made before the Tribunal and even before learned

Single Judge it was argued that no concession was

made before the Tribunal. Mr. Cama, learned

counsel for respondent company has seriously

disputed this statement made by Ms. Doshi.

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28. It is well settled that if a party feels that

any statement made by him or his counsel has been

wrongly recorded in the judgment it has to approach

the same learned Judge to get the order corrected.

In State of Maharashtra v. Ramdas Shrinivas Nayak,

1982 (2) SCC 463, the Supreme Court dealt with this

point. We may quote the relevant observation of

the Supreme Court.

. “If a party thinks that the happening

in

court have been wrongly recorded in a

judgment, it is incumbent upon the party,

while the matter is still fresh in the

minds of the judges, to call the

attention of the very judges who have

made the record to the fact that the

statement made with regard to his conduct

was a statement that had been made in

error (per Lord Buckmaster in Madhu Sudan

Chowdhri v. Chandrabati Chowdhrain).


             That      is the only way to have the               record





             corrected.          If no such step is taken, the

             matter        must      necessarily end there.             Of

             course         a    party    may     resile      and       an

             appellate          court    may permit him in           rare




                                                         ::: Downloaded on - 09/06/2013 14:14:53 :::
                                 25



              and    appropriate         cases to resile from             a

              concession        on      the     ground    that         the

              concession        was       made      on      a      wrong




                                                                                  
              appreciation         of    the law and had led            to




                                                         
              gross       injustice;      but he may not call in

              question       the    very      fact of    making        the

concession as recorded in the judgment.”

29. The above judgment was followed by the Supreme

Court in Commissioner of Endowments & Ors. v.

Vithal Rao & Ors., (2005) 4 SCC 120. It was,

therefore,

necessary for learned counsel for the

appellant union to approach learned Single Judge

and get the order corrected. In fact we asked Ms.

Doshi whether she wanted to approach learned Single

Judge in this connection. However there was no

positive response from her. In our opinion, this

stand taken by the appellant union makes a dent in

its case.

30. Ms. Doshi submitted that even if the

extracted observation of the Tribunal is to be

treated as a concession the said concession cannot

bind the appellant union as a concession made by

the advocate on a question of law would not bind

the party. In support of this submission, learned

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26

counsel relied upon Uptron India Ltd. v. Shammi

Bhan, (1998) 6 SCC 538. In that case the issue

before the court was whether a provision in

standing orders for automatic termination of

service of an employee was valid. It appears that

in an earlier judgment the Supreme Court had

recorded that counsel appearing on behalf of the

employee had not contested this point. When this

concession was pointed out the Supreme Court held

that a wrong concession on a question of law made

by counsel is not binding on his client. Such

concession cannot constitute a binding precedent.

31. In P. Nallamal & Anr. v. State (1999) 6 SCC

559 on which reliance is placed by Ms. Doshi, the

Under Secretary to the Government of India had

filed a counter affidavit conceding the legal

position espoused by the the appellants. It was

argued before the Supreme Court that it was not

open to the Government of India to retrace from a

concession once made in the court on a legal

proposition. The Supreme Court rejected this

submission. The Supreme Court observed that the

construction of statutory provision cannot rest

entirely on the stand adopted by any party in the

lis. A party cannot be nailed to a position on the

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27

legal interpretation which it adopted at a

particular point of time because saner thoughts can

throw more light on the same subject at a later

stage. For the same proposition Ms.Doshi also

relied on Union of India & Ors. v. Mohanlal

L.Punjabi & Ors., (2004) 3 SCC 628 in which the

Supreme Court reiterated that a wrong concession

made by counsel cannot bind the parties when

statutory provisions clearly provide otherwise.





                                           
    32.      In    view of the law laid down by the                      Supreme

    Court     in
                               
                    the above judgments, it is not                   possible

for any one to contest the proposition that a wrong

concession made by a party or its advocate on a

statutory provision cannot bind them. However, in

our opinion, facts of this case are different. We

are not concerned here with merely a concession

made by a counsel. The appellant union took a

stand that under Section 25-O(5), the Specified

Authority can review its order and also make a

reference and that the Specified Authority had in

fact reviewed its order on the basis of judgment of

this court in Cable Corporation’s case which held

the field at that time. We have already noted that

this legal stand of the appellant union is

reflected in its arguments filed before the

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28

Tribunal and in its affidavit-in-reply filed in

this court. Thus the concession flows from the

pleadings of the parties. The appellant union

accepted the factual existence of a valid review

order and thereafter sought to defend its stand on

the basis of this court’s judgment in Cable

Corporation’s case. After the Supreme Court set

aside this court’s judgment in Cable Corporation’s

case the appellant-Union is trying to contend that

such statement was never made. In any case it is

pertinent to note that in Commissioner of

Endowment’s case
ig (supra) the Supreme Court has

observed that a party may resile from a concession

of law but it cannot call in question the very fact

of making the concession as recorded in the

judgment. We may also mention that in Writ

Petition No. 1794 of 2008 which is filed by the

appellant union prior to the filing of this appeal,

the appellant Union proceeded on the basis that

there is a factual order of review. It only seeks

to contend that the said order has been passed

illegally. The conclusion is inevitable that the

appellant union is adopting inconsistent stands and

its conduct reflects on the credibility of its

case.

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33. It is then submitted by Ms. Doshi that in

Orissa Textile’s case (supra) the Supreme Court

found that the recast provision of Section 25-O

after its amendment is constitutionally valid on

various grounds including the ground as regards the

provision specifically made for a review or a

reference under Section 25-O (5). She submitted

that by interpreting the order of the Specified

Authority in the manner suggested by the respondent

company, the workmen would be deprived of the said

remedy which was found to be a necessary remedy by

the Supreme Court.

34. It is not possible to accept this argument.

Undoubtedly the remedy of review or reference is a

valuable remedy. But the legal position is

clarified by the Supreme Court in Cable

Corporation’s case (supra). The two remedies are

alternative remedies. If review jurisdiction is

exercised and review application is rejected then

there can be no further order of reference. In

this case there is no question of denial of remedy

to the appellant union. The application of the

appellant union has been considered by the

Specified Authority and the Specified Authority has

rejected it. The appellant union adopted the

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30

remedy available in law and the Specified Authority

adjudicated the application. Once Specified

Authority considers the application of the

appellant union merely because the decision of the

Specified Authority is against the appellant union

it cannot contend that it was deprived of the

valuable right of review. We have already

concluded that the Specified Authority exercised

its review jurisdiction and rejected the review

application. The order of the Specified Authority

cannot be interpreted in any other way. Any

attempt made by
ig us to interpret it differently

would be doing violence to the law settled by the

Supreme Court in Cable Corporation’s case (supra).

35. Ms. Doshi submitted that in the reference

made under Section 25-O(5) the Tribunal has in fact

found that the reasons seeking permission to effect

closure are neither genuine nor adequate and not in

public interest. The Tribunal found that the

termination orders issued to the workmen were

illegal and that the workmen were entitled to wages

and other benefits from 2/5/03 as they are deemed

to have been continued in service. Ms. Doshi

pointed out that the amount which the workmen are

entitled to receive works out to approximately

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31

Rs.7.8 crores. Ms. Doshi submitted that while

admitting the appeal this court has directed the

respondent company to furnish security to the

satisfaction of the Prothonotary & Senior Master of

this court to protect the interest of the workmen.

Learned counsel pointed out that the workmen are

without job since 2003.

36. Learned counsel further pointed out that after

the rejection of the reference the respondent

company has purported to effect the closure vide

its

notice dated 20/6/07 without prejudice to the

earlier closure. Ms. Doshi submitted that when

the reference was made this court’s judgment in

Cable Corporation’s case (supra) was holding the

field and, therefore, the reference made in the

light of that judgment was legal. Learned Counsel

urged that it is necessary to adjudicate the

legality and propriety of the award dated 5/5/07

made by the Tribunal on merits because in the

proceedings initiated by the appellant union

challenging the purported closure as per the notice

dated 20/6/07 the legality and propriety of the

closure effected in 2003 cannot be gone into by the

Industrial Court.

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37. We are not impressed by this submission. The

Tribunal made its award pursuant to the Specified

Authority’s order dated 24/4/03. Once that order

is found to be illegal, the award must fall to the

ground. This is a settled legal position which

cannot be overlooked. If the award goes, the

consequences must follow. The argument that the

reference order is in consonance with this court’s

judgment in Cable Corporation’s case which held the

field at that time and, therefore, the reference is

legally valid is fallacious. The legal position

has been

clarified by the Supreme Court now and

what preceded the reference order must be examined

in the light of the Supreme Court’s judgment in

Cable Corporation’s case (supra).

38. We are mindful of the fact that here, we are

concerned with closure of a factory unit which is

bound to result in unemployment and hardship to

workmen. Ms. Doshi has laid stress on this

aspect. But we will have to go strictly by law.

Impugned order is in tune with the Supreme Court’s

judgment in Cable Corporation’s case (supra).

Hence we are of the considered opinion that no

interference is necessary with it. Hence appeal is

dismissed.

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33

JUDGE

JUDGE

39. At this stage, learned counsel for the

appellant states that the interim order passed by

this court may be continued for a period of eight

weeks as the appellant is desirous of approaching

the Supreme

Court. In the circumstances of the

case, we direct that the security furnished by the

respondent company be continued for a period of

eight weeks from today.

JUDGE

JUDGE

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34

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

APPEAL NO. 446 OF 2008

DATE ON WHICH THE JUDGMENT IS

RESERVED :28TH NOVEMBER, 2008

DATE ON WHICH THE JUDGMENT IS

PRONOUNCED:___TH JANUARY,2009

Transcription of
Judgment / Order.

    Submitted    for
    approval.

THE HON’BLE (SMT.) JUSTICE RANJANA DESAI:

THE HON’BLE SHRI JUSTICE K. K. TATED:


    1.   Whether Reporters of Local Papers    )
         be allowed to see the Judgment?      )

2. To be referred to the Reporters or )
not? )

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35

3. Whether Their Lordships wish to )
see the fair copy of the Judgment? )

4. Whether this case involves a )

substantial question of law as to )
the interpretation of the )
Constitution of India, 1950 or any )

Order made thereunder? )

5. Whether it is to be circulated to )
the Civil Judges? )

6. Whether the case involves an impor- )
tant question of law and whether )
a copy of the judgment should be )
sent to Nagpur, Aurangabad and Goa )
Offices? )

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