{"id":139671,"date":"2009-01-15T00:00:00","date_gmt":"2009-01-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mulund-e-vs-ganpatrao-kadam-marg-on-15-january-2009-2"},"modified":"2016-03-04T21:17:59","modified_gmt":"2016-03-04T15:47:59","slug":"mulund-e-vs-ganpatrao-kadam-marg-on-15-january-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mulund-e-vs-ganpatrao-kadam-marg-on-15-january-2009-2","title":{"rendered":"Mulund (E vs Ganpatrao Kadam Marg on 15 January, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mulund (E vs Ganpatrao Kadam Marg on 15 January, 2009<\/div>\n
Bench: Ranjana Desai, K. K. Tated<\/div>\n
                            1\n\n\n\nMSS\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n             ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                                       \n                      APPEAL NO. 446 OF 2008\n\n\n\n\n                                               \n                                 IN\n\n                WRIT PETITION NO. 1332 OF 2007\n\n\n\n\n                                              \n      PAINT EMPLOYEES UNION             )\n\n      B-29, Jeevan Nagar,Mithagar Road\n\n      Mulund (E), MUMBAI 400 081        )       APPELLANT\n\n\n\n\n                                     \n                                         (Org. Respondent)\n\n             Versus\n                        \n      KANSAI NEROLAC PAINTS LTD.        )\n                       \n      Formerly known as Goodlass        )\n\n      Nerolac Paints Ltd., having its)\n\n      registered office at Nerolac      )\n        \n\n\n      House, P.O. Box No. 16322         )\n     \n\n\n\n      Ganpatrao Kadam Marg,             )\n\n      MUMBAI 400 013.                   )        RESPONDENT\n                                            (Orig.Petitioner)\n \n\n\n\n\n      Ms. Meena Doshi for appellant\n      Mr.   J.   P.   Cama with Mr. C.   U.          Singh        i\/b\n      Sanjay Udeshi & Co. for respondents.\n\n\n                                CORAM:SMT.RANJANA DESAI &\n\n\n\n\n\n                                      K. K.TATED, JJ.\n\n                            DATE ON WHICH THE JUDGMENT IS\n                            RESERVED :28TH NOVEMBER, 2008\n\n                            DATE ON WHICH THE JUDGMENT IS\n                            PRONOUNCED:15TH JANUARY, 2009\n\n\n\n\n                                               ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                                   2\n\n\n\n\n    JUDGMENT:-(Per Smt. Ranjana Desai, J.)\n\n    .    The appellant is the original respondent and the\n\n\n\n\n                                                                                  \n    respondent      is    the      original     petitioner         in     Writ\n\n\n\n\n                                                         \n    Petition      No.1332 of 2007.          The said writ          petition\n\n    was filed by the respondent challenging order dated\n\n    24\/4\/03      passed      by    the   Commissioner         of     Labour,\n\n\n\n\n                                                        \n    Maharashtra        State insofar as it dealt with                  review\n\n    of earlier order dated 27\/3\/03.               It is necessary to\n\n\n\n\n                                           \n    begin with the facts of the case.\n\n\n\n    2.     The\n                             \n                  respondent is a company registered                    under\n\n    the    Companies Act, 1956 (\"the respondent                    company\"\n                            \n    for    convenience).           It has    various      manufacturing\n\n    units      in different parts of the country.                  It had a\n\n    manufacturing        unit at Lower Parel.          The       appellant\n      \n\n\n    is     a     registered        trade     union    and      has        been\n   \n\n\n\n    representing        the employees of the Lower Parel unit\n\n    of    the    respondent        company since 1945.           It     is     a\n\n\n\n\n\n    recognized         union       under    Chapter       II       of       the\n\n    Maharashtra         Recognition        of    Trade      Unions          and\n\n    Prevention      of    Unfair Labour Practices              Act,       1971\n\n\n\n\n\n    (\"MRTU & PULP Act\" for short).               For convenience, we\n\n    shall      refer    to    the appellant as        \"the       appellant\n\n    union.\n\n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                                 3\n\n\n\n    3.     On    27\/1\/03,    the respondent company               made       an\n\n    application        seeking      permission to close down               the\n\n    Lower    Parel factory unit under Section 25-O of the\n\n\n\n\n                                                                                 \n    Industrial        Disputes Act, 1947 (\"the said Act\"                   for\n\n\n\n\n                                                        \n    short).       In    the application several             reasons        for\n\n    proposed      closure    were noted.         It was stated           that\n\n    the    financial condition of the Lower Parel factory\n\n\n\n\n                                                       \n    unit    had deteriorated to a great extent;                   that the\n\n    Lower    Parel      factory unit as a whole had               incurred\n\n\n\n\n                                          \n    losses      of about Rs.320 lakhs in the first half                      of\n\n    the    current      year;    that it is estimated that                 the\n\n    same\n                          \n            trend would follow in the second half of                       the\n\n    current      financial      year    and     that    there       are      no\n                         \n    chances      of revival of the unit.             This    application\n\n    was    resisted by the appellant union.                 On    27\/3\/03,\n\n    after    hearing      the    parties       the    Commissioner           of\n      \n\n\n    Labour      who    is the Specified Authority             under        the\n   \n\n\n\n    said    Act    (\"Specified Authority\" for               convenience)\n\n    granted      permission      to the respondent           company         to\n\n\n\n\n\n    close    down      the Lower Parel unit.           On 15\/4\/03          the\n\n    appellant      union filed an application under Section\n\n    25-O    (5)    of    the said Act seeking review                of     the\n\n\n\n\n\n    order       dated    27\/3\/03      or   a    reference         to       the\n\n    Industrial        Tribunal.      That application was opposed\n\n    by the respondent company.\n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                                 4\n\n\n\n    4.     The    Specified      Authority       passed       order          on\n\n    24\/4\/03.       The Specified Authority observed that it\n\n    was of the opinion that the appellant union had not\n\n\n\n\n                                                                                 \n    made    out    a    case for review of        the      order       dated\n\n\n\n\n                                                        \n    27\/3\/03      granting permission to effect the closure.\n\n    The    Specified      Authority further observed that                    it\n\n    had    gone through the submissions made by both                       the\n\n\n\n\n                                                       \n    parties      and    had come to the conclusion              that       the\n\n    matter    needs      judicial     scrutiny.        The      Specified\n\n\n\n\n                                           \n    Authority,      therefore,       referred the        matter        under\n\n    Section      25-O (5) of the said Act to the Industrial\n\n    Tribunal.\n                             \n                            \n    5.     The proceedings before the Industrial Tribunal\n\n    were    held.      Parties filed their documents and                   led\n\n    oral evidence.        Written submissions were also filed\n      \n\n\n    before    the      Industrial Tribunal.           The     respondent\n   \n\n\n\n    company raised objection as regards maintainability\n\n    of    the reference under Section 25-O(5) of the said\n\n\n\n\n\n    Act    on the ground that the review was rejected                        by\n\n    the    Specified      Authority     and     the    reference           was\n\n    consequentially          barred as the Specified            Authority\n\n\n\n\n\n    did    not    have the power to adjudicate               the      review\n\n    application        and    also   make   a    reference          to     the\n\n    Industrial Tribunal.\n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                               5\n\n\n\n    6.     The    Industrial      Tribunal by its      order       dated\n\n    5\/5\/07      refused permission to close down the               Lower\n\n    Parel Factory Unit.        The reference was rejected and\n\n\n\n\n                                                                             \n    it   was held that the workmen were entitled to                    the\n\n\n\n\n                                                    \n    wages for the period from 2\/5\/03 onwards.\n\n\n\n    7.     It    needs    to be noted at this stage           that       on\n\n\n\n\n                                                   \n    20\/6\/07       the    respondent     company     issued        notice\n\n    informing individual workman that without prejudice\n\n\n\n\n                                       \n    to   its contention that the closure dated 2\/5\/03 is\n\n    legal    and valid, it had decided to close down                   the\n\n    Lower\n                          \n             Parel unit vide notice dated 20\/6\/07                 issued\n\n    under    Section 25FF A of the said Act.             It     appears\n                         \n    that a separate complaint is filed by the appellant\n\n    union    under the provisions of the MRTU & PULP Act,\n\n    1971 in respect of the said notice.\n      \n   \n\n\n\n    8.     Being      aggrieved    by the   award    dated        5\/5\/07\n\n    passed       by     the   Industrial     Tribunal         refusing\n\n\n\n\n\n    permission        to close down the Lower Parel unit, the\n\n    respondent company filed Writ Petition No.                  1332 of\n\n    2007    praying inter alia that the said award                 dated\n\n\n\n\n\n    5\/5\/07 be quashed and set aside.\n\n\n\n    9.     By    order dated 28\/7\/08 learned         Single        Judge\n\n    made    the    Rule absolute in terms of prayer               clause\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                                 6\n\n\n\n    (a)    i.e.    he quashed and set aside the award dated\n\n    5\/5\/07.       While    setting        aside the      award        learned\n\n    Single    Judge observed that the Specified Authority\n\n\n\n\n                                                                                   \n    could    not have referred the matter to the Tribunal\n\n\n\n\n                                                          \n    in    exercise of its power under Section 25-O (5) of\n\n    the    said Act, having rejected the application                         for\n\n    review.        He    observed        that     the    power        of     the\n\n\n\n\n                                                         \n    Specified      Authority        to    deal with and         decide         an\n\n    application      made      to it under Section             25-O      stood\n\n\n\n\n                                              \n    exhausted      on    the rejection of review               application\n\n    and    a reference to the Tribunal thereafter was not\n\n    competent.       The\n                           \n                            said order is challenged in                    this\n\n    appeal.\n                          \n    10.     Mr.    Cama, learned counsel for the respondent\n\n    raised    a preliminary objection.              He submitted that\n      \n\n\n    before    filing      the present appeal,            the      appellant\n   \n\n\n\n    union    had    filed Writ Petition No.              1794       of     2008\n\n    challenging      order      dated      24\/4\/03      passed        by     the\n\n\n\n\n\n    Specified Authority under Section 25-O(5) declining\n\n    to    review    permission        granted       for      closure         and\n\n    instead    referring        the      matter to      the     Industrial\n\n\n\n\n\n    Tribunal      for    adjudication.          In that      petition          in\n\n    paragraphs       b    to    e,       the    appellant       union        had\n\n    contended      that    the order dated 24\/4\/03 is not                      an\n\n    order     amounting        to    rejection       of      the        review\n\n\n\n\n                                                          ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                                    7\n\n\n\n    application         preferred by the appellant union.                 The\n\n    appellant         union     withdrew those grounds         with       the\n\n    permission         of the court.        Mr.   Cama submitted that\n\n\n\n\n                                                                               \n    by withdrawing the said grounds the appellant union\n\n\n\n\n                                                       \n    has     accepted the existence of the order of review,\n\n    therefore,         the     appellant union is      estopped         from\n\n    raising       a contention that the Specified              Authority\n\n\n\n\n                                                      \n    has not decided the review;               that there is no order\n\n    passed       by    it    on     the    review   application         and,\n\n\n\n\n                                            \n    therefore,         the     reference     is validly     made.         The\n\n    present appeal is, therefore, not maintainable.\n                              \n    11.      Ms.      Doshi, learned counsel for the appellant\n                             \n    union     on      the    other hand submitted       that       Section\n\n    25-O(5)       grants       a statutory remedy to a party              who\n\n    seeks review or reference.               Relying on the judgment\n      \n\n\n    of     the    Supreme Court in Orissa Textile and                 Steel\n   \n\n\n\n    Ltd.     v.        State      of Orissa, 2002 2     SC     578,       she\n\n    submitted         that    this remedy is in addition to               the\n\n\n\n\n\n    judicial review under Article 226 and Article 32 of\n\n    the Constitution of India.               She submitted that Writ\n\n    Petition No.         1794 of 2008 seeks judicial review of\n\n\n\n\n\n    the    order       dated 24\/4\/03 without prejudice to                 the\n\n    right    of       the    appellant union to file         an      appeal\n\n    challenging         the impugned order.         Therefore, filing\n\n    of Writ Petition No.               1794 of 2008 will not come in\n\n\n\n\n                                                       ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                                 8\n\n\n\n    the    way of the appellant union in prosecuting                         the\n\n    present appeal.\n\n\n\n\n                                                                                   \n    12.     So    far    as    the     deletion      of      grounds           is\n\n\n\n\n                                                          \n    concerned,      Ms.       Doshi    submitted        that      the      said\n\n    grounds      were    deleted      because      at    the      stage        of\n\n    admission      of    Writ    Petition No.        1794 of          2008      a\n\n\n\n\n                                                         \n    contention      was    raised      by    the    counsel         for      the\n\n    respondent      company that since learned Single Judge\n\n\n\n\n                                           \n    had    concluded      vide his judgment and              order       dated\n\n    28th    July, 2008 in Writ Petition No.                  1332 of 2007\n\n    that    the\n                           \n                   order of the Specified Authority                     was     a\n\n    clear    rejection of a review, another writ petition\n                          \n    on    the    said    issue      could not      be    filed        by     the\n\n    appellant       union.       Ms.        Doshi    submitted           that,\n\n    therefore,      and    in view of the fact             that       learned\n      \n\n\n    Single       Judge    had    so     held,      he    permitted           the\n   \n\n\n\n    appellant      union      to withdraw the last sentence                    of\n\n    paragraph      3 and grounds (b) to (e).               She submitted\n\n\n\n\n\n    that,    learned Single Judge permitted her to                       raise\n\n    these    grounds      in    the    present      appeal        memo       and\n\n    accordingly she has raised them.\n\n\n\n\n\n    13.     Though,      we find some substance in                Mr.Cama's\n\n    argument,      we    do not want to go into              this       aspect\n\n    because      in the circumstances of the case, we                      feel\n\n\n\n\n                                                          ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                                  9\n\n\n\n    that correct approach will be to deal with the case\n\n    on    merits.      We    shall      deal with    the     appeal         on\n\n    merits.\n\n\n\n\n                                                                                \n                                                       \n    14.     Extensive       arguments      have been      advanced          by\n\n    learned counsel for the parties.             We have carefully\n\n    read    the    written submissions filed by              them.          We\n\n\n\n\n                                                      \n    shall deal with their submissions as we discuss the\n\n    various issues which have been raised in this case.\n\n\n\n\n                                          \n    15.     Since we are concerned here with Section 25-O\n\n    of\n                            \n          the Industrial Disputes Act, it is necessary to\n\n    quote it.      Section 25-0, so far as it is relevant\n                           \n    for the present case reads as under:\n\n\n\n    .       \"25-O.        Procedure      for   closing         down         an\n      \n\n\n    undertaking.-(1)         An employer who intends to                 close\n   \n\n\n\n    down    an undertaking of an industrial establishment\n\n    to    which    this     Chapter       applies    shall,        in     the\n\n\n\n\n\n    prescribed       manner, apply, for prior permission                    at\n\n    least    ninety      days     before the date on         which        the\n\n    intended      closure     is to become effective,              to     the\n\n\n\n\n\n    appropriate Government, stating clearly the reasons\n\n    for    the intended closure of the undertaking and                       a\n\n    copy    of    such    application shall         also     be      served\n\n    simultaneously          on    the     representatives          of     the\n\n\n\n\n                                                       ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                                 10\n\n\n\n    workmen in the prescribed manner.\n\n    .     Provided that . . . . .\n\n    .    (2) Where an application for permission has been\n\n\n\n\n                                                                                 \n    made     under       subsection        (1),   the        appropriate\n\n\n\n\n                                                        \n    Government,        after making such enquiry as it thinks\n\n    fit    and    after giving a reasonable opportunity                      of\n\n    being    heard      to the employer, the workmen and                   the\n\n\n\n\n                                                       \n    persons      interested      in    such closure        may,       having\n\n    regard      to    the   genuineness and       adequacy          of     the\n\n\n\n\n                                          \n    reasons      stated     by the employer, the interests                   of\n\n    the    general public and all other relevant factors,\n                            \n    by order and for reasons to be recorded in writing,\n\n    grant or refuse to grant such permission and a copy\n                           \n    of such order shall be communicated to the employer\n\n    and the workmen.\n\n    .     (3)            . . . . .\n      \n\n\n    .     (4)    An    order of      the   appropriate        Government\n   \n\n\n\n    granting      or    refusing      to grant    permission           shall\n\n    subject      to    the provisions of subsection               (5),       be\n\n\n\n\n\n    final    and      binding    on all the parties           and      shall\n\n    remain      in force for one year from the date of such\n\n    order.\n\n\n\n\n\n    .     (5) The appropriate Government shall either                        on\n\n    its    own    motion or on the application made by                     the\n\n    employer      or any workman, review its order granting\n\n    or    refusing      to grant permission under             subsection\n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                                   11\n\n\n\n    (2)    or    refer      the    matter    to    a   Tribunal           for\n\n    adjudication:\n\n    .    Provided that where a reference has been made to\n\n\n\n\n                                                                                \n    a    Tribunal under this subsection, it shall pass an\n\n\n\n\n                                                       \n    award    within a period of thirty days from the date\n\n    of such reference.\n\n    .     (6)    Where no application for permission                  under\n\n\n\n\n                                                      \n    subsection      (1) is made within the period specified\n\n    therein,      or   where the permission for closure                   has\n\n\n\n\n                                           \n    been    refused, the closure of the undertaking shall\n\n    be    deemed    to be illegal from the date of                 closure\n\n    and    the    workmen\n                             igshall     be entitled      to     all      the\n\n    benefits      under any law for the time being in force\n                           \n    as if the undertaking had not been closed down.\n\n    .     (7)            . . . . .\n\n    .     (8)            . . . . .\n      \n   \n\n\n\n    16.     Before     we go to the rival contentions it                    is\n\n    necessary       to      see    how    the    Supreme     Court        has\n\n\n\n\n\n    interpreted Section 25-O(5).             At this stage it must\n\n    be    noted    that there is no dispute about the                   fact\n\n    that    Section      25-O(5) of the said Act is              in     pari\n\n\n\n\n\n    materia with Section 25-N(6) of the said Act.\n\n\n\n    17.     In     Engineering         Mazdoor    Sabha     v.         Addl.\n\n    Commissioner       of    Labour & Ors., 2005 II            LLJ,       the\n\n\n\n\n                                                       ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                                 12\n\n\n\n    respondent         company       made   an     application              for\n\n    permission         to     retrench      workmen.           The        said\n\n    application        was    partly    allowed      by       the       Addl.\n\n\n\n\n                                                                                  \n    Commissioner        by    granting permission           to     retrench\n\n\n\n\n                                                         \n    only     276      workmen.       Against      that        order         the\n\n    petitioner Mazdoor Sabha filed an application under\n\n    Section      25-N(6) of the said Act for review of                      the\n\n\n\n\n                                                        \n    said    decision        or for reference of the matter                  for\n\n    adjudication.           That application was rejected inter\n\n\n\n\n                                           \n    alia    on the ground that no new point was raised in\n\n    the review proceedings which warranted examination.\n\n    The    petitioner\n                             \n                             Mazdoor Sabha challenged the                 said\n\n    order    in this court.          Learned Single Judge of this\n                            \n    court    was of the view that the Addl.                 Commissioner\n\n    was    right in holding that no new point was                      raised\n\n    in    the    review application.         Learned Single             Judge\n      \n\n\n    held    that      that    part    of    the    order       needs          no\n   \n\n\n\n    interference.        Learned Single Judge then considered\n\n    whether the Addl.          Commissioner was obliged to make\n\n\n\n\n\n    reference.         It was argued by the employer                 company\n\n    that    once review application is rejected there was\n\n    no    question      of making reference.         Learned           Single\n\n\n\n\n\n    Judge    held      that    rejection of       prayer       of      review\n\n    cannot      be    the    basis    to decline     the       remedy         of\n\n    reference        as is provided in Section 25-N(6) of the\n\n    said     Act.       Learned       Single     Judge,        therefore,\n\n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                                   13\n\n\n\n    modified       the      order of the Addl.     Commissioner           by\n\n    directing him to refer the matter for adjudication.\n\n    That judgment was carried in appeal to the Division\n\n\n\n\n                                                                              \n    Bench.        The Division Bench concurred with              learned\n\n\n\n\n                                                     \n    Single       Judge      and dismissed the appeal.\n\n\n\n    18.     The     judgment       of   the    Division    Bench        was\n\n\n\n\n                                                    \n    challenged         in    the Supreme Court.     It    was      argued\n\n    before       the    Supreme     Court that    once    the      review\n\n\n\n\n                                           \n    application         was disposed of there is no scope               for\n\n    further       making      a reference in view of       the      clear\n\n    language\n                             \n                   of Section 25N(6) which provides for                 the\n\n    alternative         and does not empower a reference after\n                            \n    the review petition is rejected.              The Supreme Court\n\n    referred        to      its   earlier     decision    in       Orissa\n\n    Textile's      case      (supra) and observed that in             that\n      \n\n\n    case    it    was considering the question whether                  the\n   \n\n\n\n    provision      of review and reference were in addition\n\n    to    judicial review and it never said that they are\n\n\n\n\n\n    cumulative         and not alternative.       The Supreme Court\n\n    further held that had the legislature intended that\n\n    the reference could be made after the Government or\n\n\n\n\n\n    Specified Authority deals with the review power, it\n\n    could    have said so specifically by specific words.\n\n    It could have provided for a direct reference.                      The\n\n    Supreme Court further observed that a plain reading\n\n\n\n\n                                                     ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                                   14\n\n\n\n    of    the provision makes the position clear that two\n\n    courses      are    open.       Power      is    conferred          on     the\n\n    appropriate        Government to either on its own motion\n\n\n\n\n                                                                                     \n    or    on    an    application made, review its                  order        or\n\n\n\n\n                                                            \n    refer      the matter to the Tribunal.              Whether one              or\n\n    the    other of the courses could be adopted                        depends\n\n    on     the    facts      of     each    case,      the       surrounding\n\n\n\n\n                                                           \n    circumstances        and several other relevant                   factors.\n\n    In    the circumstances the Supreme Court allowed the\n\n\n\n\n                                              \n    appeal.\n\n\n\n    19.\n                             \n            In view of the above clear enunciation of law\n\n    there       need     not       be     any       debate        over         the\n                            \n    interpretation        of Section 25-O(5) of the said Act.\n\n    The Specified Authority can on its own motion or on\n\n    an    application        made      to it, review its            order        or\n      \n\n\n    refer      the matter to the Industrial Tribunal.                        Once\n   \n\n\n\n    review application is disposed of there is no scope\n\n    for further making a reference.\n\n\n\n\n\n    20.     It is now necessary to refer to the facts                            of\n\n    this    case.      The appellant union has prayed in                       its\n\n\n\n\n\n    application that the Specified Authority may review\n\n    its    order      dated    27\/3\/03 granting          permission              to\n\n    close      down    the    Lower      Parel       unit      or     in       the\n\n    alternative         it    may      refer     the    matter          to     the\n\n\n\n\n                                                            ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                                  15\n\n\n\n    Industrial        Tribunal.        In the words of Ms.             Doshi\n\n    counsel      appearing for the appellant union it is                      a\n\n    consolidated         application      seeking    a review          or     a\n\n\n\n\n                                                                                 \n    reference under Section 25-O(5).              Ms.      Doshi argued\n\n\n\n\n                                                        \n    that    in the case of a consolidated application the\n\n    Specified       Authority has to either say 'yes' to one\n\n    prayer     and 'no' to another prayer.            She       submitted\n\n\n\n\n                                                       \n    that    in    this      case the     Specified    Authority            has\n\n    decided      to refer the case.         There is no         categoric\n\n\n\n\n                                          \n    rejection       of     the   review     application.            It     has\n\n    decided      to    choose one option i.e.         to      refer        the\n\n    matter     to     the\n                            \n                             Industrial Tribunal.            Ms.       Doshi\n\n    submitted that one cannot read one observation made\n                           \n    by   the     Specified Authority in          isolation          thereby\n\n    ignoring      the      final   conclusion reached by              it     to\n\n    refer    the matter.         Ms.    Doshi submitted that while\n      \n\n\n    considering        application under Section 25-O(5)                   the\n   \n\n\n\n    Specified       Authority      has    to    consider        the      same\n\n    factors      which it has to consider while deciding an\n\n\n\n\n\n    application          under        Section     25-O(2)           seeking\n\n    permission        to close down an undertaking i.e.                    (a)\n\n    whether      the     reasons are genuine (b)           whether         the\n\n\n\n\n\n    reasons       are       adequate      (c)    whether          granting\n\n    permission        is    in general public interest and                 (d)\n\n    other relevant factors.             She submitted that in this\n\n    case    the Specified Authority has not categorically\n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                                      16\n\n\n\n    rejected          the    application.         It has stated that                 it\n\n    was     of    the       opinion       that    judicial         scrutiny          is\n\n    required           and     has       referred        the       matter          for\n\n\n\n\n                                                                                         \n    adjudication.            There is no finality to its order in\n\n\n\n\n                                                                \n    the     sense       that       the     order       indicates        that       the\n\n    Specified          Authority was of the opinion that                       since\n\n    judicial          scrutiny is required there is no need                          to\n\n\n\n\n                                                               \n    review       the order.          Mr.    Cama, learned counsel                  for\n\n    the     respondent company on the other hand relied on\n\n\n\n\n                                                 \n    Cable    Corporation case (supra) and submitted                              that\n\n    the     above argument of Ms.                 Doshi must be           rejected\n\n    in    view        thereof.\n                                ig   Relying on the Supreme                 Court's\n\n    judgment          in     National       Insurance          Co.      Ltd.         v.\n                              \n    Mastan        &    Anr.         (2006)    2    SCC     641,       Mr.        Cama\n\n    submitted that a party must in law elect one of the\n\n    two     available remedies.              If it does not             expressly\n      \n\n\n    elect        in its application as to whether it seeks                            a\n   \n\n\n\n    review       or     a     reference it runs the              risk       of     the\n\n    Government          taking up the matter by way of a review\n\n\n\n\n\n    and     by    rejection thereof precluding an                       order        of\n\n    reference.\n\n\n\n\n\n    21.      It       is difficult to accept the submission                          of\n\n    Ms.      Doshi          that    since        the    application           was     a\n\n    composite          application, the Specified Authority has\n\n    to say 'yes' to one prayer and 'no' to other.                                This\n\n\n\n\n                                                                ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                                  17\n\n\n\n    view     will       run    counter        to    the         authoritative\n\n    pronouncement         of    the    Supreme          Court        in         Cable\n\n    Corporation's         case     (supra).          At        the     cost         of\n\n\n\n\n                                                                                        \n    repetition, it must be stated that in that judgment\n\n\n\n\n                                                               \n    the     Supreme Court has referred to its judgment                              in\n\n    Fakir    Mohd.        (dead) by Lrs.           v.     Sita Rani,            2002\n\n    (1)    SCC 741, where it was held that the word                              'or'\n\n\n\n\n                                                              \n    is     normally disjunctive.             The use of the word 'or'\n\n    in a statute manifests the legislative intention of\n\n\n\n\n                                             \n    the alternatives prescribed under law.                          The Supreme\n\n    Court     has       observed      that     had       the        legislature\n                              \n    intended that the reference could be made after the\n\n    Specified Authority deals with the review power, it\n                             \n    would     have said so specifically by specific words.\n\n    It     could    have       provided for a           direct        reference.\n\n    These     observations         of the Supreme Court                   make      it\n      \n\n\n    clear     that,       if the Specified Authority                   exercises\n   \n\n\n\n    its     review power it cannot make a reference.                               Now\n\n    to     ascertain      whether       the    Specified            Authority's\n\n\n\n\n\n    order     is    in consonance with the judgment                        of      the\n\n    Supreme      Court in Cable Corporation's case                         (supra)\n\n    or    not,     it    is necessary to           quote        the      relevant\n\n\n\n\n\n    paragraphs of the Specified Authority's order dated\n\n    24\/4\/03.       They read as under:\n\n\n\n             .      \"As    regards various prayers made                       by\n\n\n\n\n                                                               ::: Downloaded on - 09\/06\/2013 14:14:53 :::\n                         18\n\n\n\n     the    Applicant        Union in the     review        and\n\n     stay      application,       I have to state         that\n\n     there      is no provision under Section 25-O\n\n\n\n\n                                                                      \n     of    the    Industrial Disputes Act,1947               to\n\n\n\n\n                                              \n     grant      such    prayers, therefore, I am             of\n\n     the    opinion that various prayers made by\n\n     the Applicant Union cannot be granted.                    I\n\n\n\n\n                                             \n     am     also    of    the      opinion,    that         the\n\n     Applicant      Union has not made out a              case\n\n\n\n\n                                    \n     for review of the order dated 27\/3\/2003.\"\n\n\n\n     .     I\n                   \n                have gone through the         submissions\n\n     made      by both the parties in the           instant\n                  \n     matter      and    have come to the       conclusion\n\n     that      the matter needs judicial scrutiny.\n\n     Hence, I pass the following order:\n      \n   \n\n\n\n                             ORDER\n<\/pre>\n
     .     The    matter in the application             dated<\/p>\n
     27\/1\/03      of M\/s.      Goodlas Nerolac        Paints<\/p>\n
     Ltd.,      Ganpatrao Kadam Marg, Lower Parel,<\/p>\n
     Mumbai      400 013 under Section 25-O(1)               of<\/p>\n
     the Industrial Disputes Act, 1947 seeking<\/p>\n
     permission        of closure of its Lower Parel<\/p>\n
     Unit      situated      in    the   abovementioned<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                                 19<\/span><\/p>\n
             address      is hereby referred under Section<\/p>\n
             25-O(5) of the said Act to the Industrial<\/p>\n
             Tribunal,        Mumbai consisting of Sou.             S.\n<\/p>\n
             V.      Ayarekar.\"\n\n\n\n\n                                                     \n    22.     There      is no dispute about the fact that                the\n\n    reference        made by the Specified Authority in               it's\n\n\n\n\n                                                    \n    order    to      various prayers made in the          application\n\n<\/pre>\n
    and its observation that for those prayers there is<\/p>\n
    no    provision      under Section 25-O of the said               Act,<\/p>\n
    relate      to    prayers regarding interim relief.                 The<\/p>\n
    question<\/p>\n
                  is whether the sentence “I am also of the<\/p>\n
    opinion,      that the Applicant Union has not made out<\/p>\n
    a    case    for review of the order dated            27\/3\/2003”,<\/p>\n
    should      be    read    as rejection of      the    prayer        for<\/p>\n
    review      or    not.     We have no doubt that         when       the<\/p>\n
    Specified        Authority expresses its opinion, that no<\/p>\n
    case    is    made    out for review,      it    exercises          its<\/p>\n
    jurisdiction        to    deal with the review        application<\/p>\n
    and    rejects      it.     Merely     because    it     does       not<\/p>\n
    categorically        state    that    review    application           is<\/p>\n
    rejected, it cannot be said that review application<\/p>\n
    is    not    rejected.       The opinion expressed           by     the<\/p>\n
    Specified        Authority    is    not worthless.         The      law<\/p>\n
    contemplates        that,    if    it expresses that         in     its<\/p>\n
    opinion, no case for review is made out, the matter<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                                  20<\/span><\/p>\n
    must end there.        Once it expresses opinion, that no<\/p>\n
    case    for review is made out the application cannot<\/p>\n
    be    processed      further.        It     is    not      possible          to<\/p>\n
    interpret      this    order to mean that            the        Specified<\/p>\n
    Authority      proceeded       on    the      basis        that         since<\/p>\n
    judicial     scrutiny        is required it need not                  review<\/p>\n
    the    order.     In    this        case     when    the        Specified<\/p>\n
    Authority expresses that no case for review is made<\/p>\n
    out,    it   is clear that it has applied its mind                           to<\/p>\n
    the    rival    contentions which it has reproduced                          in<\/p>\n
    detail    and    formed an opinion.              It has dealt            with<\/p>\n
    the    application.\n<\/p>\n
                            ig   It    has    exercised          its      review\n\n    jurisdiction      and       rejected      it.       The       order          is\n                          \n<\/pre>\n
    susceptible to no other inference.\n<\/p>\n
    23.     We must, however, record that in our                        opinion<\/p>\n
    the    doctrine      of election has no application                      here<\/p>\n
    and    the   reliance placed by Mr.               Cama on          National<\/p>\n
    Insurance      Co’s case (supra) is totally                   misplaced.\n<\/p>\n
    In that case the court was considering two remedies<\/p>\n
    available       to      an        injured        workman           to      get<\/p>\n
    compensation.          He    is     entitled      for      compensation<\/p>\n
    under the Workmen’s Compensation Act, 1923 and also<\/p>\n
    under    the Motor Vehicles Act, 1988.                   Under Section<\/p>\n
    167    of the Motor Vehicles Act, 1988 the                      aggrieved<\/p>\n
    party    has    the option to elect either of them                         but<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                                 21<\/span><\/p>\n
    not    both.    Observations of the Supreme Court                    will<\/p>\n
    have    to    be read against the background                of     these<\/p>\n
    facts.       We are not concerned here with a provision<\/p>\n
    akin    to    Section      167 of the Motor        Vehicles          Act,<\/p>\n
    1988.     The      said    judgment       has,   therefore,              no<\/p>\n
    application to this case.\n<\/p>\n
    24.    It is pointed out by Mr.            Cama that before the<\/p>\n
    Tribunal, the appellant union had conceded that the<\/p>\n
    Specified       Authority         had     decided      the        review<\/p>\n
    application        on   merits.     This is recorded            by     the<\/p>\n
    Tribunal      in    its
\n                             igorder.    In    the   impugned          order<\/p>\n
    learned      Single Judge has also said so.               Mr.        Cama<\/p>\n
    submitted      that the appellant union is estopped from<\/p>\n
    taking a contrary stand now.\n<\/p>\n
    25.     It is pertinent to note that in the statement<\/p>\n
    of    claim    filed by the respondent company                  in     the<\/p>\n
    reference      which      was    decided    by   the      Industrial<\/p>\n
    Tribunal      pursuant      to    the   Specified        Authority’s<\/p>\n
    order dated 24\/4\/03, the respondent company clearly<\/p>\n
    stated    that      the Specified Authority had               rejected<\/p>\n
    the    review      application, however, in view                of     the<\/p>\n
    mandatory      provision        of Section 25-O of          the      said<\/p>\n
    Act,    the    Specified        Authority    had     referred          the<\/p>\n
    matter    of permission for closure to the                  Tribunal.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                                   22<\/span><\/p>\n
    Even     in    its      written arguments filed         before        the<\/p>\n
    Tribunal,         the    respondent      company      specifically<\/p>\n
    raised       this contention.        It is significant to note<\/p>\n
    that     the appellant union in its written                arguments<\/p>\n
    filed     before        the   Tribunal stated that         scope        of<\/p>\n
    section       25-O(5)      is    akin   to the    powers       of     the<\/p>\n
    Tribunal       under      Section 10 of the said Act and                as<\/p>\n
    such     the Tribunal would have the same powers under<\/p>\n
    Section       25-O(5)      of    the said Act.      Reliance          was<\/p>\n
    placed       by    the appellant union on the judgment                  of<\/p>\n
    this     court in Cable Corporation’s case.                Obviously<\/p>\n
    it<\/p>\n
          is on this basis that the Tribunal observed                       in<\/p>\n
    its    award       dated 29\/4\/03 that it was not             disputed<\/p>\n
    that    the       Specified Authority decided           the      review<\/p>\n
    application on merits.\n<\/p>\n
    26.     It     is equally important to note that in                   the<\/p>\n
    affidavit         in    reply    dated 6\/9\/07     filed      in     Writ<\/p>\n
    Petition       No.1332 of 2007, the appellant Union                   has<\/p>\n
    reiterated the same submission.              Reliance is placed<\/p>\n
    on    this     court’s judgment in         Cable    Corporation’s<\/p>\n
    case.     The point to note is that in paragraph 21 of<\/p>\n
    the     Tribunal’s        award, the Tribunal       has      recorded<\/p>\n
    that      it      is    not     disputed   that    the     Specified<\/p>\n
    Authority decided the review application on merits.\n<\/p>\n
    In     paragraph 6(1) of the affidavit in reply                   there<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                                 23<\/span><\/p>\n
    is    a reference to the said paragraph 21.                However,<\/p>\n
    it    is not stated that the appellant union had                    not<\/p>\n
    disputed that the review application was decided on<\/p>\n
    merits.       On    the    contrary it is stated         that       the<\/p>\n
    contention      raised      by the respondent company             that<\/p>\n
    after hearing the review application on merits, the<\/p>\n
    Specified      Authority has no power to make reference<\/p>\n
    has    been rejected by the Tribunal and this finding<\/p>\n
    cannot    be characterized as misdirection in law                     on<\/p>\n
    the    part    of the Tribunal.        It appears that          after<\/p>\n
    considering        the    pleadings, more particularly              the<\/p>\n
    affidavit in reply filed by the appellant union and<\/p>\n
    after    hearing        learned    counsel for    the      parties,<\/p>\n
    learned    Single Judge has observed in the                impugned<\/p>\n
    order    that it was not disputed before the Tribunal<\/p>\n
    that the Specified Authority has decided the review<\/p>\n
    application        on    merits.    In our opinion, there             is<\/p>\n
    strong    basis for the above observation made by the<\/p>\n
    Tribunal as well as by learned Single Judge.\n<\/p>\n
    27.     Ms.    Doshi argued that no such concession was<\/p>\n
    made    before      the Tribunal and even before             learned<\/p>\n
    Single    Judge it was argued that no concession                    was<\/p>\n
    made    before      the    Tribunal.     Mr.     Cama,       learned<\/p>\n
    counsel       for    respondent       company    has     seriously<\/p>\n
    disputed this statement made by Ms.              Doshi.\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                                   24<\/span><\/p>\n
    28.    It is well settled that if a party feels that<\/p>\n
    any   statement made by him or his counsel has                        been<\/p>\n
    wrongly recorded in the judgment it has to approach<\/p>\n
    the   same learned Judge to get the order corrected.\n<\/p>\n
    In State of Maharashtra v.              Ramdas Shrinivas Nayak,<\/p>\n
    1982 (2) SCC 463, the Supreme Court dealt with this<\/p>\n
    point.       We    may quote the relevant observation                     of<\/p>\n
    the Supreme Court.\n<\/p>\n
             .     “If a party thinks that the happening<\/p>\n
             in<\/p>\n
                   court have been wrongly recorded in a<\/p>\n
             judgment, it is incumbent upon the party,<\/p>\n
             while        the    matter is still fresh in              the<\/p>\n
             minds         of    the    judges,     to    call         the<\/p>\n
             attention          of    the very judges       who      have<\/p>\n
             made      the      record    to the fact       that       the<\/p>\n
             statement made with regard to his conduct<\/p>\n
             was      a    statement that had been            made      in<\/p>\n
             error (per Lord Buckmaster in Madhu Sudan<\/p>\n
             Chowdhri        v.        Chandrabati    Chowdhrain).<\/p>\n
\n\n             That      is the only way to have the               record\n\n\n\n\n\n             corrected.          If no such step is taken, the\n\n             matter        must      necessarily end there.             Of\n\n             course         a    party    may     resile      and       an\n\n             appellate          court    may permit him in           rare\n\n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 14:14:53 :::<\/span>\n                                 25<\/span>\n\n\n\n              and    appropriate         cases to resile from             a\n\n              concession        on      the     ground    that         the\n\n              concession        was       made      on      a      wrong\n\n\n\n\n                                                                                  \n              appreciation         of    the law and had led            to\n\n\n\n\n                                                         \n              gross       injustice;      but he may not call in\n\n              question       the    very      fact of    making        the\n\n<\/pre>\n
              concession as recorded in the judgment.”\n<\/p>\n
    29.     The above judgment was followed by the Supreme<\/p>\n
    Court     in    Commissioner         of Endowments &         Ors.         v.\n<\/p>\n
    Vithal    Rao     &    Ors., (2005) 4 SCC           120.       It       was,<\/p>\n
    therefore,<\/p>\n
                     necessary       for learned counsel for                the<\/p>\n
    appellant       union    to approach learned Single                 Judge<\/p>\n
    and    get the order corrected.              In fact we asked Ms.<\/p>\n
    Doshi whether she wanted to approach learned Single<\/p>\n
    Judge    in     this connection.           However there         was      no<\/p>\n
    positive       response from her.           In our opinion,           this<\/p>\n
    stand    taken by the appellant union makes a dent in<\/p>\n
    its case.\n<\/p>\n
    30.      Ms.      Doshi     submitted         that    even       if     the<\/p>\n
    extracted       observation         of    the Tribunal is          to     be<\/p>\n
    treated    as a concession the said concession cannot<\/p>\n
    bind    the     appellant union as a concession made                      by<\/p>\n
    the    advocate       on a question of law would not                  bind<\/p>\n
    the    party.     In support of this submission, learned<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                                    26<\/span><\/p>\n
    counsel         relied upon Uptron India Ltd.                v.       Shammi<\/p>\n
    Bhan,      (1998)      6 SCC 538.         In that case          the      issue<\/p>\n
    before      the    court       was     whether      a    provision           in<\/p>\n
    standing         orders       for     automatic      termination             of<\/p>\n
    service         of an employee was valid.            It appears that<\/p>\n
    in    an    earlier         judgment      the    Supreme      Court        had<\/p>\n
    recorded        that    counsel appearing on behalf of                     the<\/p>\n
    employee        had not contested this point.                 When       this<\/p>\n
    concession        was pointed out the Supreme Court                      held<\/p>\n
    that    a wrong concession on a question of law                          made<\/p>\n
    by    counsel      is       not binding on his          client.          Such<\/p>\n
    concession cannot constitute a binding precedent.\n<\/p>\n
    31.    In P.       Nallamal & Anr.          v.    State (1999) 6 SCC<\/p>\n
    559     on which reliance is placed by Ms.                    Doshi, the<\/p>\n
    Under       Secretary        to   the Government of           India        had<\/p>\n
    filed       a    counter      affidavit      conceding        the      legal<\/p>\n
    position         espoused      by the the appellants.               It     was<\/p>\n
    argued       before      the Supreme Court that it                was      not<\/p>\n
    open       to the Government of India to retrace from                         a<\/p>\n
    concession         once      made    in    the court       on     a    legal<\/p>\n
    proposition.            The    Supreme       Court      rejected         this<\/p>\n
    submission.            The    Supreme Court observed that                  the<\/p>\n
    construction           of    statutory provision           cannot        rest<\/p>\n
    entirely         on the stand adopted by any party in                      the<\/p>\n
    lis.       A party cannot be nailed to a position on the<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                                  27<\/span><\/p>\n
    legal     interpretation           which    it       adopted         at      a<\/p>\n
    particular point of time because saner thoughts can<\/p>\n
    throw    more       light on the same subject at                 a    later<\/p>\n
    stage.        For    the    same proposition           Ms.Doshi         also<\/p>\n
    relied    on        Union    of India &       Ors.      v.       Mohanlal<\/p>\n
    L.Punjabi      &     Ors., (2004) 3 SCC 628 in               which          the<\/p>\n
    Supreme       Court     reiterated that a wrong              concession<\/p>\n
    made     by    counsel       cannot    bind      the    parties           when<\/p>\n
    statutory provisions clearly provide otherwise.<\/p>\n
\n\n\n\n\n                                           \n    32.      In    view of the law laid down by the                      Supreme\n\n    Court     in\n                               \n                    the above judgments, it is not                   possible\n\n<\/pre>\n
    for any one to contest the proposition that a wrong<\/p>\n
    concession          made    by a party or its advocate                 on    a<\/p>\n
    statutory       provision cannot bind them.                 However, in<\/p>\n
    our     opinion, facts of this case are different.                          We<\/p>\n
    are     not    concerned here with merely               a    concession<\/p>\n
    made     by    a     counsel.      The appellant union               took    a<\/p>\n
    stand     that       under Section 25-O(5),            the     Specified<\/p>\n
    Authority       can     review      its order and also               make    a<\/p>\n
    reference       and that the Specified Authority had                        in<\/p>\n
    fact reviewed its order on the basis of judgment of<\/p>\n
    this     court in Cable Corporation’s case which                          held<\/p>\n
    the field at that time.             We have already noted that<\/p>\n
    this     legal       stand    of      the   appellant          union        is<\/p>\n
    reflected      in     its    arguments        filed       before          the<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                                   28<\/span><\/p>\n
    Tribunal    and       in its affidavit-in-reply             filed        in<\/p>\n
    this    court.        Thus the concession flows             from       the<\/p>\n
    pleadings       of    the     parties.    The     appellant        union<\/p>\n
    accepted    the       factual existence of a valid                review<\/p>\n
    order    and thereafter sought to defend its stand on<\/p>\n
    the    basis     of    this        court’s     judgment     in        Cable<\/p>\n
    Corporation’s         case.        After the Supreme Court             set<\/p>\n
    aside    this court’s judgment in Cable Corporation’s<\/p>\n
    case    the appellant-Union is trying to contend that<\/p>\n
    such    statement was never made.               In any case it           is<\/p>\n
    pertinent        to    note     that     in      Commissioner            of<\/p>\n
    Endowment’s       case
\n                             ig (supra)      the Supreme       Court       has<\/p>\n
    observed       that a party may resile from a concession<\/p>\n
    of law but it cannot call in question the very fact<\/p>\n
    of     making    the     concession       as    recorded      in       the<\/p>\n
    judgment.        We     may    also      mention    that      in      Writ<\/p>\n
    Petition       No.      1794 of 2008 which is filed by                 the<\/p>\n
    appellant union prior to the filing of this appeal,<\/p>\n
    the     appellant       Union proceeded on the            basis       that<\/p>\n
    there     is a factual order of review.              It only seeks<\/p>\n
    to     contend       that   the said order has         been       passed<\/p>\n
    illegally.           The conclusion is inevitable that                 the<\/p>\n
    appellant union is adopting inconsistent stands and<\/p>\n
    its     conduct       reflects      on the credibility           of    its<\/p>\n
    case.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                                  29<\/span><\/p>\n
    33.      It    is then submitted by Ms.          Doshi         that       in<\/p>\n
    Orissa      Textile’s    case (supra) the            Supreme          Court<\/p>\n
    found     that    the recast provision of             Section         25-O<\/p>\n
    after     its    amendment is constitutionally valid                      on<\/p>\n
    various grounds including the ground as regards the<\/p>\n
    provision       specifically         made   for a     review        or     a<\/p>\n
    reference       under    Section 25-O (5).          She      submitted<\/p>\n
    that     by    interpreting the order of            the      Specified<\/p>\n
    Authority in the manner suggested by the respondent<\/p>\n
    company,       the workmen would be deprived of the said<\/p>\n
    remedy        which was found to be a necessary remedy by<\/p>\n
    the Supreme Court.\n<\/p>\n
    34.      It    is not possible to accept this                argument.\n<\/p>\n
    Undoubtedly       the remedy of review or reference is a<\/p>\n
    valuable       remedy.       But     the    legal     position            is<\/p>\n
    clarified        by     the       Supreme     Court        in         Cable<\/p>\n
    Corporation’s         case (supra).         The two remedies             are<\/p>\n
    alternative       remedies.          If review jurisdiction               is<\/p>\n
    exercised       and review application is rejected                    then<\/p>\n
    there     can    be no further order of          reference.               In<\/p>\n
    this     case there is no question of denial of remedy<\/p>\n
    to    the     appellant union.         The application           of     the<\/p>\n
    appellant        union    has       been    considered         by       the<\/p>\n
    Specified Authority and the Specified Authority has<\/p>\n
    rejected       it.     The    appellant      union      adopted         the<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                                 30<\/span><\/p>\n
    remedy available in law and the Specified Authority<\/p>\n
    adjudicated         the    application.         Once        Specified<\/p>\n
    Authority       considers         the     application         of       the<\/p>\n
    appellant      union merely because the decision of the<\/p>\n
    Specified      Authority is against the appellant union<\/p>\n
    it    cannot    contend        that it was     deprived         of     the<\/p>\n
    valuable       right      of    review.       We    have        already<\/p>\n
    concluded      that    the Specified Authority              exercised<\/p>\n
    its    review      jurisdiction and rejected             the      review<\/p>\n
    application.         The order of the Specified Authority<\/p>\n
    cannot    be    interpreted        in   any    other      way.         Any<\/p>\n
    attempt      made    by
\n                            ig us to interpret         it    differently<\/p>\n
    would    be doing violence to the law settled by                       the<\/p>\n
    Supreme Court in Cable Corporation’s case (supra).\n<\/p>\n
    35.     Ms.     Doshi submitted that in             the     reference<\/p>\n
    made under Section 25-O(5) the Tribunal has in fact<\/p>\n
    found that the reasons seeking permission to effect<\/p>\n
    closure are neither genuine nor adequate and not in<\/p>\n
    public    interest.         The    Tribunal     found       that       the<\/p>\n
    termination        orders      issued   to    the    workmen         were<\/p>\n
    illegal and that the workmen were entitled to wages<\/p>\n
    and    other benefits from 2\/5\/03 as they are                     deemed<\/p>\n
    to    have    been    continued in service.              Ms.       Doshi<\/p>\n
    pointed      out that the amount which the workmen                     are<\/p>\n
    entitled      to    receive      works out     to    approximately<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                                   31<\/span><\/p>\n
    Rs.7.8       crores.       Ms.     Doshi submitted      that      while<\/p>\n
    admitting       the      appeal this court has directed               the<\/p>\n
    respondent       company       to    furnish    security       to     the<\/p>\n
    satisfaction of the Prothonotary & Senior Master of<\/p>\n
    this     court to protect the interest of the workmen.\n<\/p>\n
    Learned       counsel      pointed out that the workmen               are<\/p>\n
    without job since 2003.\n<\/p>\n
    36.     Learned counsel further pointed out that after<\/p>\n
    the     rejection        of   the    reference    the    respondent<\/p>\n
    company       has    purported to effect the closure                vide<\/p>\n
    its<\/p>\n
            notice dated 20\/6\/07 without prejudice to                     the<\/p>\n
    earlier       closure.        Ms.    Doshi submitted that           when<\/p>\n
    the     reference        was made this court’s        judgment          in<\/p>\n
    Cable    Corporation’s           case (supra) was holding             the<\/p>\n
    field    and,       therefore, the reference made              in     the<\/p>\n
    light    of that judgment was legal.              Learned Counsel<\/p>\n
    urged    that       it   is    necessary    to    adjudicate          the<\/p>\n
    legality      and     propriety of the award dated               5\/5\/07<\/p>\n
    made    by    the     Tribunal on merits         because       in     the<\/p>\n
    proceedings          initiated       by   the    appellant        union<\/p>\n
    challenging the purported closure as per the notice<\/p>\n
    dated    20\/6\/07         the legality and propriety            of     the<\/p>\n
    closure effected in 2003 cannot be gone into by the<\/p>\n
    Industrial Court.\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                                     32<\/span><\/p>\n
    37.     We are not impressed by this submission.                         The<\/p>\n
    Tribunal       made its award pursuant to the                 Specified<\/p>\n
    Authority’s           order dated 24\/4\/03.          Once that        order<\/p>\n
    is    found to be illegal, the award must fall to the<\/p>\n
    ground.        This      is a settled legal          position        which<\/p>\n
    cannot      be    overlooked.           If the     award    goes,        the<\/p>\n
    consequences           must     follow.     The argument that            the<\/p>\n
    reference        order is in consonance with this court’s<\/p>\n
    judgment in Cable Corporation’s case which held the<\/p>\n
    field at that time and, therefore, the reference is<\/p>\n
    legally       valid      is fallacious.          The legal      position<\/p>\n
    has     been<\/p>\n
                      clarified by the Supreme Court                now      and<\/p>\n
    what     preceded the reference order must be examined<\/p>\n
    in    the     light of the Supreme Court’s                 judgment        in<\/p>\n
    Cable Corporation’s case (supra).\n<\/p>\n
    38.      We are mindful of the fact that here, we                        are<\/p>\n
    concerned         with closure of a factory unit which                     is<\/p>\n
    bound     to      result in unemployment and               hardship        to<\/p>\n
    workmen.          Ms.     Doshi       has   laid    stress      on     this<\/p>\n
    aspect.          But    we will have to go strictly by                 law.\n<\/p>\n
    Impugned         order is in tune with the Supreme Court’s<\/p>\n
    judgment         in     Cable        Corporation’s    case      (supra).\n<\/p>\n
    Hence    we      are     of the considered opinion              that       no<\/p>\n
    interference is necessary with it.                   Hence appeal is<\/p>\n
    dismissed.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                              33<\/span><\/p>\n
                                                              JUDGE<\/p>\n
                                                              JUDGE<\/p>\n
    39.     At   this   stage,    learned   counsel      for      the<\/p>\n
    appellant     states that the interim order passed              by<\/p>\n
    this    court may be continued for a period of            eight<\/p>\n
    weeks    as the appellant is desirous of        approaching<\/p>\n
    the    Supreme<\/p>\n
                     Court.    In the circumstances        of     the<\/p>\n
    case,    we direct that the security furnished by the<\/p>\n
    respondent     company    be continued for a     period         of<\/p>\n
    eight weeks from today.\n<\/p>\n
                                                              JUDGE<\/p>\n
                                                              JUDGE<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                                 34<\/span><\/p>\n
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY<\/p>\n
                ORDINARY ORIGINAL CIVIL JURISDICTION<\/p>\n
                          APPEAL NO. 446 OF 2008<\/p>\n
                             DATE ON WHICH THE JUDGMENT IS<\/p>\n
                             RESERVED :28TH NOVEMBER, 2008<\/p>\n
                             DATE ON WHICH THE JUDGMENT IS<\/p>\n
                             PRONOUNCED:___TH JANUARY,2009<\/p>\n
    Transcription of
\n    Judgment \/ Order.\n<\/p>\n
    Submitted    for\n    approval.\n\n<\/pre>\n
    THE HON’BLE (SMT.) JUSTICE RANJANA DESAI:\n<\/p>\n
    THE HON’BLE SHRI JUSTICE K. K. TATED:<\/p>\n
\n\n    1.   Whether Reporters of Local Papers    )\n         be allowed to see the Judgment?      )\n\n<\/pre>\n
    2.   To be referred to the Reporters or   )
\n         not?                                 )<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>
\n                                35<\/span><\/p>\n
    3.   Whether Their Lordships wish to       )
\n         see the fair copy of the Judgment?    )<\/p>\n
    4.   Whether this case involves a          )<\/p>\n
         substantial question of law as to     )
\n         the interpretation of the             )
\n         Constitution of India, 1950 or any    )<\/p>\n
         Order made thereunder?                )<\/p>\n
    5.   Whether it is to be circulated to     )
\n         the Civil Judges?                     )<\/p>\n
    6.   Whether the case involves an impor-   )
\n         tant question of law and whether      )
\n         a copy of the judgment should be      )
\n         sent to Nagpur, Aurangabad and Goa    )
\n         Offices?                              )<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:14:53 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
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), […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-139671","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMulund (E vs Ganpatrao Kadam Marg on 15 January, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mulund-e-vs-ganpatrao-kadam-marg-on-15-january-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mulund (E vs Ganpatrao Kadam Marg on 15 January, 2009 - 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