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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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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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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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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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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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
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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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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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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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32
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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