Sunil Ambwani, J. - (1.) This writ petition has been filed by Jay Shree Tea and Industries Ltd., a public sector company, and Jay Shree Tyres and Rubber Products as well as Sri R. P. Verma, a share holder in Jay Shree Tea and Industries Ltd., to declare Section 6W of the U.P. Industrial Disputes Act, 1947, as constitutionally bad and invalid, violative of Article 19 (1) (g) of the Constitution of India, and for a writ of mandamus directing the respondent Nos. 1 and 2 not to enforce the provisions of Section 6W of the Act against the petitioners. The prayer No. 3 is for a writ of certiorari quashing the impugned award dated 26.2.1987 published on 5.3.1987, by the Industrial Tribunal-I, Allahabad in Adjudication Case No. 4 of 1987 (between Jay Shree Tyres and Rubber Products and its workmen), and also the order of the State Government dated 29.9.1986 passed under Section 6W of the Act.
(2.) The writ petition was heard and allowed, along with other connected petitions, by this Court on 28.3.1990. The Court relied upon the Supreme Court decision in Excel Wear and Ors. v. Union of India and Ors., AIR 1979 SC 25, in which Section 25-O of the Industrial Disputes Act, 1947, as a whole and Section 25R in so far as which provided for punishment for the Infraction of Section 25-O were held to be constitutionally bad and invalid for violation of Article 19 (1) (g) of the Constitution of India. The Supreme Court held that right to close the business is an integral part of fundamental right to carry on a business, but no right is absolute in its scope so is the nature of this right. It can be restricted, regulated or controlled by law in the interest of general public. The provisions of Section 25-O, however, were found by the Supreme Court, to be inadequate and did not provide reasonable restrictions. The authority can arbitrarily refuse the permission. It was found that the provision of Section 25-O (2) did not require giving reasons in the order. The order was not made subject to any scrutiny of any higher authority or Tribunal either in appeal or revision and that the order cannot be reviewed.
(3.) The Rashtriya Jay Shree Tyres Karamchari Union and others filed Civil Appeal No. 3455 of 1990. The State of U.P. also filed an appeal against the judgment of this Court. These appeals along with other civil appeals from other States were decided by a Constitutional Bench of Supreme Court in Orissa Textile and Steel Ltd. v. State of Orissa and Ors., (2002) 2 SCC 578. The Supreme Court held that the amended Section 25-O of the Industrial Disputes Act, as amended by Amendment Act No. 46 of 1982 was similar to Section 25N of the Central Act. Though Meenakshi Mill's case (Workmen v. Meenakshi Mill Ltd., (1992) 3 SCC 336, dealt with retrenchment, same principle would apply to closure, which ultimately effects to termination of services, though all the workmen both under Section 25N and Section 25-O are in Chapter-V. The object and reasons for enacting these provisions are the same and must be kept in mind while considering amended Section 25-O. Section 25-O has been enacted to given effect to the directive principles of the Constitution and must be regarded as being in the interest of general public. After the amended Section 25-O the appropriate Government is required to make an enquiry and the order has to be in writing and contain reasons. The enquiry postulate the correctness of the facts stated by the employer in the notice served by him and also all other relevant facts and circumstances including the bona fide of the employer. An opportunity of hearing has to be afforded to the employer, the workmen and all interested. The detailed information which the employer gives enables the appropriate Government to make up its mind and collect necessary facts for the purpose of granting or refusing permission. The appropriate Government would have to ascertain whether the information furnished is correct and whether the principal action is necessary, and if so, to what extent. This attributes makes the exercise of functions, quasi-judicial in nature. The words, 'after making such enquiry as it thinks fit', only gives discretion regarding the nature of enquiry to be made by the State Government. It was found that the amended Section 25-O fixing the time limit for resusing the permission to cure the defects pointed out in Excel Wear's case. Sub-section (4) of Section 25-O provides that the order of the appropriate Government shall remain in force for one year from the date of such order, thus, making it open to the employers to again apply for permission of closure. The time limit for one year makes the restriction reasonable. If the State Government does not communicate the order in 60 days from the time when application is made, the amended Section 25-O (3) deems the permission to be granted. Section 25-O (8) has dispensed with the requirement of three months' notice, and that now the employer is required only to pay compensation equivalent to 15 days average pay for every completed year of continuous service.;