G. N. Ray, J. - (1.) This appeal is directed against the order dated 9th April, 1981 passed by the Division Bench of the High Court of Madras in Writ Petition No. 1119 of 1977. The said writ petition was moved by the respondent No. 1. Madura Coats Ltd., for a declaration that Section 25-M of the Industrial Disputes Act, 1947 as it stood under the Industrial Dispute (Amendment) Act, 1976 in so far as it required prior permission to be obtained to effect lay off is ultra vires and void. The writ petitioner respondent No. 1 also prayed that the State of Tamil Nadu represented by the Secretary to Government, Labour and Employment Department, Madras should be restrained form enforcing the provisions of the said Industrial Dispute (Amendment) Act in respect of the lay off application being application No. 4 of 1976 made by the petitioner. The petitioner also prayed for a writ in the nature of certiorari calling for the records of the Joint Commissioner of Labour, Madras, for quashing order dated 11th September 1976 by which the said lay off application was rejected by the Joint Labour Commissioner. Along with the said Writ Petition No. 1119 of 1977, a number of similar writ petitions challenging the vires of Section 25-M of the Industrial Disputes Act and consequential prosecutional penalty for the lay off in contravention of Section 25 M were heard by the Division Bench of the Madras High Court and by one common judgment, all the said writ petitions were disposed of.
(2.) The Division Bench of the Madras High Court inter alia held that Section 25-M as it stood under the said amendment Act, 1976 was constitutionally invalid for the reasons given by this Court in invalidating Section 25-0 of the Industrial Disputes Act in the decision rendered in Excel Wear v. Union of India (1979) 1 SCR 1009. The Madras High Court further held that in view of its finding that Section 25-M was constitutionally invalid, it was unnecessary for the Court to go into the validity or otherwise on the orders passed by the authorities which had been impugned in some of the cases before the High Court. The High Court also rejected the prayer for granting leave to appeal to this Court by indicating that as the High Court had followed the judgment of the Apex Court in Excel Wear's case (supra) there was no occasion to hold that the impugned decision involved a substantial question of law of general importance which was required to be decided by the Apex Court.
(3.) For the purpose of appreciating the respective contentions of the parties in this appeal. The provisions of Section 25-M of the Industrial Disputes Act as amended by the Industrial Dispute (Amendment) Act, 1776 is set out as hereunder:- "25-M. Prohibition of lay-off (1) No workman (other than a badli workman or a casual workman whose name is more on the muster rolls of an industrial establishment to which this Chapter applies shall be laid off by his employer except with the previous permission or of such authority as may be specified by the appropriate Government by notification in the official Gazette unless such lay off is due to shortage of power or to natural calamity. (2) Where the workmen (other than badli workmen or casual workmen) of an industrial establishment referred to in sub-section (1) have been laid off before the commencement of the Industrial Disputes (Amendment) Act, 1976 and such lay-off continues at such commencement, the employer in relation to such establishment shall, within a period of fifteen days from such commencement, apply to the authority specified under sub-section (1) for permission to continue the lay-off. (3) In the case of every application for permission under sub-section (1) or sub-section (2), the authority to whom the application has been made may, after making such inquiry as he thinks fit, grant or refuse, for reasons to be recorded in writing, the permission applied for. (4) Where an application for permission has been made under sub-section (1) or sub-section (2) and the authority to whom the application is made does not communicate the permission or the refusal to grant the permission to the employer within a period of two months from the date on which the application is made the permission applied for shall be deemed to have been granted on the expiration of the said period of two months. (5) Where no application for permission under sub-section (1) is made, or where no application for permission under sub-section (2) has been made within the period specified therein, or where the permission for the lay-off or the continuance of the lay off has been refused, such lay-off shall be deemed to be illegal from the date on which the workmen have been laid off and the workmen shall be entitled to all the benefits under any law for the time being in force as if they had not been laid off. (6) The provisions of Section 25 C (other than the second proviso thereto shall apply to cases of lay-off referred to in this Section. Explanation - For the purposes of this section a workman shall not be deemed to be laid-off by an employer if such employer offers any alternative employment which in the opinion of the employer does not call for any special skill or previous experience and can be done by the workman in the same establishment from which he has been laid off or in any other establishment belonging to the same employer, situate in the same town or village, or situate within such distance from the establishment to which he belongs that the transfer will not involve undue hardship to the workman having regard to the facts and circumstances of his case, provided that the wages which would normally have been paid to the workman are offered for the alternative appointment also." ;