- (1.) WHILE construing the provisions of section 25-O of the Industrial Disputes Act, 1947 (hereinafter for brevity referred to as the 'act'), learned single Judge of this Court took a view that on a Reference under section 25-O, the application for closure is referred and not merely the order passed by the appropriate Government and the Industrial Tribunal would have, therefore, to consider the application for closure de novo (Voltas Employees Union Vs. Voltas Limited and another), 2002 (2)Bom. C. K. 425 (O. S.) : 2002 (11) C. L. R. 140. In (Tilak Nagar Industries Limited Vs. The commissioner of Labour, Maharashtra State and others)2, Writ Petition No. 2426 of 2004 (Aurangabad Bench) decided on 6. 5. 2004, the learned Judge further held that when the government or Specified Authority decides to review the order and makes a Reference, the whole matter is referred to the Industrial tribunal for adjudication. It is the application under section 25-O (l) itself which is referred and once a Reference under section 25-O (5) is made, the order passed under subsection (2) automatically gets eclipsed and achieves finality on the conclusion of the matter by the Tribunal. The Reference is not of the order but of the application. In (Mahalaxmi Glass Works Pvt. Ltd. Vs. Slate of maharashtra and others), 2007 (111) C. L. R. 43, the view stated was that the entire dispute was to be adjudicated where Reference is made and the order passed under section 25-O (2) allowing closure is kept in cold storage or in abeyance.
(2.) WHILE finding it difficult to follow the principles stated by the learned Judges on the construction and interpretation of section 25-O of the Act in the matter of review and/or Reference, another Single Judge of this Court while referring to the provisions and scheme of the Act, decided to refer the matter for decision to a larger Bench. The respondents even raised an objection to the very maintainability of the present Reference. It is contended that in the light of the dictum of law stated by a Full Bench of this court in the case of (Karim Abdul Vs. Shehnaz karim) (2005)5 Bom. C. R. 758, which is in line with the view taken by the Supreme court in the case of (General Finance Co. and another Vs. Assistant Commissioner, Income tax, Punjab)5, 2002 DGLS (soft) 722 : 2002 (7)S. C. C. 1 and (Central Board of Dawoodi Bohra community Vs. State of Maharashtra), 2005 (3) Bom. C. R. 204 (S. C.) : 2004 DGLS (soft) 919 : 2005 (2) S. C. C. 673 there being an uninterrupted long standing view and practice, the learned Single Judge ought not to have referred the matter to the Full Bench. To meet this argument, it was contended on behalf of the petitioners that the view taken by the learned Single Judges is not in conformity with the observations made in the judgment of the Division Bench of this Court in the case of (Association of Engineering workers Vs. Indian Plume Pipe Company Ltd. and others)', 1985 (2) Bom. C. R. 699 : (1985)1 l. L. J. 450 which states a distinct principle of law though with reference to the provisions of section 25-N of the Act but the provisions of section 25-N being pan matena to section 25-O, the Reference is valid. It is also argued that the questions formulated in the order of Reference are otherwise questions of great importance and arise before the courts repeatedly. Thus, it would be in the interest of justice to clearly state the principles of law governing therein. The principles of law stated in the judgments relied upon by the respondents can hardly be disputed. As a rule of law and practice, a smaller Bench is not expected to differ with the law enunciated by a larger Bench. Normally, only a bench of equal strength can make a Reference to a larger Bench and that too for valid reasons, by referring the matter to the Chief justice who has to pass an order in accordance with Rule 7 of Chapter I of Part I of the bombay High Court, Appellate Side Rules, 1960. Same Rule exists on High Court Original side Rules being Rule 28 of the Bombay high Court (Original Side) Rules, 1980. In the present case, this Court is concerned with the ambit, scope and interpretation of provisions of section 25-O of the Act. A Single judge of this Court is in respectful disagreement with the view taken in all the three judgments by the learned Single Judges of this court referred above and opted to refer the matter to the larger Bench keeping in view the importance of the questions formulated in the order of Reference. It is not in dispute before us that except the view taken by the learned Single Judges of this Court, there is no ruling of any Division Bench or larger bench of this Court with reference to the question referred in relation to the provisions of section 25-O of the Act except Association of Engineering Workers Vs. Indian Hume Pipe company Ltd. (supra ). Merely because the courts have taken a view over a period of time, per se, is no ground for holding that the reference is not maintainable. It is said that judicial dissent in conformity with principles of judicial discipline and binding precedent helps in the development of law. It is a different matter what view the Court takes on the merits of the Reference. However, keeping in view the larger interest of administration of justice, importance of the legal questions framed in the order of Reference and the fact that there is every likelihood of these questions arising before the Courts as well as Industrial Courts and the Government repeatedly, we find ourselves duty bound to provide answers to the questions formulated so as to settle the position of law as far as State of Maharashtra is concerned.
(3.) ON 10th September, 2008, the learned single Judge while expressing dissent to the view expressed by the three learned Single judges as afore noticed, passed the following order of Reference : "2. This Court having expressed prima facie disagreement with the finding, Shri Grover, the learned Counsel for the respondents Union relied on several decisions which take the view to the contrary. According to which the impugned Award of the Industrial Court is in accordance with law. These Judgments take the view that once a Reference is made to the industrial Tribunal by the Government, its order granting or refusing to grant permission ceases to exist. Thus, the scope of the reference is restricted to the question whether the original application for closure should be granted or refused and not to the legality of the order already made by the government granting or refusing such permission. The judgments which take this view are: (1) Voltas Employees Union Vs. Voltas Ltd. and anr. , 2002 (2) Bom. C. R. 425 : 2002 (II) C. L. R. 140. (2) Writ Petition No. 2426 of 2004 decided on 6. 5. 2004 M/s. Tilaknagar Industries Ltd. Vs. The Commissioner of Labour, Maharashtra State, Mumbai (3) Mahalaxmi Glass Works Put, Ltd. Vs. State of maharashtra and ors. , 2007 (III) C. L. R. 43, and (4) Association of Engineering Workers And indian Human Pipe Company Ltd. and ors. , 1985 (2) Bom. C. R. 699 : I L. L. J. 450 ren-dered under pari rnatena provision con-tained in section 25-N of The Industrial Dis-putes Act, by a Division Bench. 3. The judgment referred to last i. e. Association of Engineering Workers And Hume Pipe Com pany Ltd. and ors. Is judgment by a Division bench under section 25-N (6) which is in pan rnatena and not under the issue involved in the present petition i. e. section 25-O. How-ever, while considering the question from an-other angle, the Division Bench has made certain observations regarding meaning of words "refer the matter" and "for adjudication" and have interpreted the words to mean refer the application for permission made by the employer for adjudication. It must be noticed that a Division Bench has in this context observed as follows: ". . . . . . . . What is sought to be referred is the matter and not the question of legality of the order. . . . . . . . . " though it appears that the real issue that was decided by the Division Bench is whether on the expiry of the period provided by section, the Reference ipso facto lapses and the tribunal becomes functus officio. The relevant sub-sections (4) and (5) of section 25-O read as follows: "25-O: (1 ). . . . . . . . . . (2 ). . . . . . . . . . (3 ). . . . . . . . . . (4) An order of the appropriate Government granting or refusing to grant permission shall, subject to the provisions of sub-section (5), be final and binding, on all the parties and shall remain in force for one year from the date of such order. (5) The appropriate Government may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (2) or refer the matter to a Tribunal for adjudication. Provided that where a Reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such Reference. " 4. The questions under consideration arise with reference to the status of the Order of the government upon being passed and the status of the Order of the Government once a reference is made. According to the Judgments of the learned Single Judge, referred to above, since the Order of the Government is final and binding subject to the provisions of sub-section (5), the Order upon Reference cither becomes ineffective or is automatically stayed and in any case not in force. As a result the Government does not and cannot refer the legality of the Order to the Industrial tribunal and the Industrial Tribunal assumes the original jurisdiction for dealing with the application for closure and is called upon to grant it or refuse it. On the other hand it appears that once the application for closure is decided it would not be correct to treat that very application which is decided as existing. 5. For reasons, need not be elaborately discussed, at this stage, I am in respectful disagreement with this view. Hence, I consider it appropriate in the interest of justice to refer the following questions for decision by a larger Bench: (1) Whether upon a Reference being made to the Industrial Tribunal under sub-section (5) for adjudication, the Order of the government made under sub-section (2) ceases to have any existence or effect in law pending reference? (2) And therefore whether the Government cannot refer the question of the legality and propriety of the Order under sub-section (2)and is restricted to referring only the question whether the application for closure should be granted or refused? (3) Whether the phrase "refer the matter" occurring in sub-section (5) empowers the government to refer the question of validity and propriety of its Order made under sub-section (2) or whether Reference must be restricted to the validity of the application? (4) Lastly, correspondingly, depending on the answer to the questions above, what is the jurisdiction of the Industrial Tribunal while deciding the Reference under sub-section (5 ). 6. It must be noted at this juncture, Shri Grover, the learned Counsel for the respondents union submitted that the questions above ought not to be referred since these question were argued by the petitioner and decided in this very case by Judgment and order of Rebello, J. passed on 22. 9. 2004 in writ Petition No. 2424 of 2004. Mr. Singh, learned Counsel for the petitioner however points out that this position is not disputed when the matter went up in Appeal before the Division Bench and the Division Bench allowed the petitioner to withdraw that petition. Shri Grover contends that this is not permissible in law. However, this point cannot be agitated before this Court and the respondents are free to raise these questions before such Forum as may be advised in accordance with law. 7. Registrar (Judicial) is directed to place the papers before the Hon'ble the Chief Justice for seeking appropriate directions as may be required. ";