1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 427 OF 2008 IN WRIT PETITION NO. 1670 OF 2008 KHATAU MILLS KAMGAR COMMITTEE ) C/o Shri Suryakant Mahadik, ) 5/16, Khatau Building, ) Tank Pakhadi Road, Byculla(West) MUMBAI 400 027 ) APPELLANT (Org. Respondent 1) Versus 1. M/s. KHATAU MAKHANJI SPINNING & WEAVING COMPANY LIMITED ) 930, Baburao Jagtap Marg ) Byculla, MUMBAI 400 027 ) 2. STATE OF MAHARASHTRA ) Through Commissioner of ) Labour, Commerce Centre, ) Tardeo, MUMBAI 400 034 ) 3. RASHTRIYA MILL MAZDOOR SANGH) Mazdoor Manzil, G.D. Ambekar) Marg, Parel, MUMBAI 400 012 ) .. RESPONDENT No.1 Orig.Petitioner, No.2 Org. Respdt. 2 No.3 Org. Respdt. 3) 2 Mr. N. M. Ganguli for appellant Mr. Piyush Shah for R-1. Mr. P. M. Palshikar for R-2. Mr. T. R. Yadav for R-3. CORAM:SMT.RANJANA DESAI & K. K.TATED, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 3RD DECEMBER, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:10TH DECEMBER,2008 JUDGMENT:-(Per Smt. Ranjana Desai, J.) . The appellant Khatau Mills Kamgar Committee ("Khatau Committee" for short) has challenged in this appeal order dated 20/8/08 passed by learned Single Judge of this court in Writ Petition No. 1670 of 2008. By the impugned order learned Single Judge has set aside order dated 3/4/08 passed by the Specified Authority under Section 25-O(5) of the Industrial Disputes Act, 1947 ("the said Act" for short). M/s. Khatau Makanji Spinning and Weaving Co. Ltd. ("Khatau Company" for short) vide application under Section 25-O(1) of the said Act sought permission for closure of its industrial establishment. The Specified Authority by its 3 order dated 23/10/07 granted the permission. Khatau Committee by an application under Section 25-O(5) of the said Act requested for review of the said order. That application was disposed of by the Specified Authority by order dated 3/4/08. The Specified Authority observed in the said order that the Khatau Committee had not made out any case for review of order dated 23/1/07. However, the Specified Authority referred the said application under Section 25-O(5) of the said Act to the Industrial Court. 2. Being aggrieved by order dated 3/4/08 making reference to the Industrial Tribunal, the Khatau Company filed Writ Petition No. 1670 of 2003. Learned Single Judge allowed the said petition, set aside order dated 3/4/08 after observing that once the application for review is rejected, the Specified Authority could not have made a reference. The said order is under challenge. 3. We find no substance in this appeal. The plain reading of Section 25-O(5) makes it clear that the Specified Authority has to make a choice between the two. It cannot exercise power to deal with review application and then make a reference. Once 4 it deals with review application it cannot make a reference. 4. In Cable Corporation of India V. Additional Commissioner of Labour & Ors. 2008 II CLR 545, the Supreme Court was concerned with Section 25-N(6) of the said Act which is in pari materia with Section 25-O(5) of the said Act. The Supreme Court was considering how to interpret the sentence "The appropriate Government or the Specified Authority may ......... review its order granting or refusing to grant permission, under Subsection (3) or refer the matter or as the case may be cause it to be referred to a Tribunal for adjudication". In that case the Specified Authority had partly allowed the application of the company filed under Section 25-N(2) of the said Act seeking permission to retrench some of the workmen. The Union filed application under Section 25-N(6) of the said Act for review of the said order. The said application was rejected by the Specified Authority. That order was challenged by the Union in a writ petition. The High Court held that the prayer for review was rightly rejected but reference cannot be barred under Section 25-N(6) of the said Act. The High Court directed that the matter be referred to 5 the Industrial Tribunal. The company challenged this order in the Supreme Court. The Supreme Court referred to its decision in Fakir Mohd. (dead) by Lrs. v. Sita Ram, 2002 (1) SCC 741 where it was held that the word ’or’ is normally disjunctive and the use of the word ’or’ in a statute manifests the legislative intent of the alternatives prescribed under the law. The Supreme Court observed that had the legislature intended that the reference could be made after the Government or the Specified Authority deals with the review power it would have said so specifically by specific words. It could have provided for a direct reference. The Supreme Court thus allowed the appeal. In our opinion, the ratio of the above judgment is clearly applicable to the facts of the present case. 5. In paragraph 5 of the order dated 3/4/08, the Specified Authority has stated as under: "5. The representatives of the Applicant Union were present at the time of hearing before the Commissioner of Labour and were fully heard in the matter. The Applicant Union has not made out any case for review of order dated 23/10/2007. It 6 is settled law that review is maintainable only when there is a error apparent on the face of record. In the present review application no ground is set out to prove that error is apparent on the face of it. The objection raised by the Applicant union were duly considered by the Competent Authority and under such circumstances the review/reference application is not maintainable and deserves to be dismissed." Paragraph 5 clearly indicates that the Specified Authority has exercised its review power and rejected the review application. However, in paragraph 6 the Specified Authority has gone on to say that considering the various reasons advanced by the union and the written say submitted by the opponent company, it was of the opinion that the matter requires to be referred to the Industrial Tribunal for adjudication. The Specified Authority then made a reference. Such an exercise is clearly contrary to the Supreme Court’s Judgment in Cable Corporation’s case (supra). 7 6. Mr. Ganguli submitted that paragraph 5 merely contains the submissions made by Khatau Company and paragraph 6 contains the reason why he has passed the order of reference. It is not possible to accept this submission. The question is whether the Specified Authority exercised its power of review. Paragraph 5 is clearly worded. There can be no doubt that the Specified Authority exercised his power and rejected the review application. He could not have, therefore, directed a reference. 7. The order of the Specified Authority has rightly been set aside by learned Single Judge. No interference is necessary with the impugned order. Appeal is dismissed. JUDGE JUDGE