[2010] 3 S.C.R. 687

M/S. EMPIRE INDUSTRIES LTD.

A v.

STATE OF MAHARASHTRA & ORS.

(Civil Appeal No. 3003 of 2005)

MARCH 17, 2010 B

[AFTAB ALAM AND DR. B.S. CHAUHAN, JJ.]

Industrial Disputes Act, 1947 - ss. 10(1) and (3) and 25N

- Lock-out of Industry - On the basis of three demands i.e. agitational activities of workmen, ceiling on dearness c allowance and retrenchment - Complaint made in respect of agitationa/ activities under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act - Order of Government prohibiting Jock-out - Order challenged on the ground that Jock-out was prohibited without D referring the disputes viz. agitational activities of workmen and retrenchment, for adjudication uls. 10(1) - Held: Appropriate Government empowered and competent to issue the order prohibiting Jock-out - On facts, there was no dispute on the basis of demand in respect of retrenchment - Retrenchment E can be effected only after following statutory provisions provided therefor-A reference uls. 10(1) cannot be used to bypass the Scheme u/s. 25N - Once having taken resort to Maharashtra Act with regard to agitational activities any proceeding under ID Act barred by s. 59 of Maharashtra Act F

- Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - s. 59. ,

ss. 10(1) and 25N - Distinction between - Explained.

Respondent-State passed order in exercise of the G power u/s. 10(3) of Industrial Disputes Act, 1947, prohibiting continuance of the lock-out in the factory of the appellant. The order was challenged in writ petition which was dismissed by Single Judge of High Court. The 687 H

A order was further confirmed in writ appeal by Division Bench of High Court.

In appeal to this Court, appellant contended that the State Government derives the legal authority to prohibit

8 a lock-out in terms of section 10(3) only after it had referred for adjudication all the disputes leading to the lock-out u/s. 10(1); that the closure of the factory being on three demands viz., agitational activities of the workmen (ii) imposition of ceiling on dearness allowance C and (iii) reduction of the workforce and retrenchment, and out of the three demands, Government having referred only one, concerning the ceiling on dearness allowance, it was not permissible to prohibit the lock-out.

.Respondent contended that in respect of agitational D activities complaint already having been filed under Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 resort to proceedings under Industrial Disputes Act, 1947 was barred, by virtue of s. 59 of the Maharashtra Act.

E Dismissing the appeal, the Court

HELD: 1. In regard to the alleged agitational activities of the workmen, the appellant had already filed a complaint u/s. 26 r/w. Item Nos. 5 and 6 of Schedule Ill of F the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Once having taken resort to the provisions of this Act, any proceeding under the Industrial Dispute Act, 1947 was barred by Section 59 of the Maharashtra Act and, G therefore, there was no question of any reference of this particular demand by the petitioner u/s. 10(1) of ID Act. [Para 13] [700-G-H; 701-A-C]

2.1. The subject of retrenchment is fully covered by H the statute. It is not left open for the employer to make a -

EMPIRE INDUSTRIES LTD. v. STATE OF 689

MAHARASHTRA & ORS.

demand in that connection and to get the ensuing A industrial dispute referred for adjudication in terms of Section 10(1) of ID Act. To say that even without following the provisions of Section 25N of ID Act, it is open to the employer to raise a demand for retrenchment of workmen and to ask the Government to refer the ensuing dispute B to the Industrial Tribunal for adjudication, would tantamount to substituting a completely different mechanism in place of the one provided for in the Act to determine the validity and justification of the employer's request for retrenchment of workers. It is true that u/s. c 25N, the authority to grant or refuse permission for retrenchment is vested in the appropriate Government which in this case would be the State Government or the authority specified by it. Under Section 10(1) too, it is the State Government that would make a reference of the 0 industrial dispute. But the two provisions are not comparable. The nature of the power of the State Government and its functions under the two provisions are completely different. In making the reference (or declining to make the reference) u/s. 10(1) of the Act, the E State Government acts in an administrative capacity whereas u/s. 25N(3) its power and authority are evidently

quasi judicial in nature. [Paras 26 and 27) [709-G-H; 710-

A-E]

2.2. Though Section 25N(6) has the provision to refer F the matter to the tribunal for adjudication, that provision is completely different from Section 10(1). A reference u/ s. 10(1) of the Act cannot be used to circumvent or bypass the statutory scheme provided u/s. 25N of the Act. This is, however, not to say that there cannot be any G dispute on the subject of retrenchment that can be referred to the tribunal for adjudication. A dispute may always be raised by or on behalf of the retrenched workmen questioning the validity of their retrenchment.

Similarly, the employer too can raise the dispute in case H

A denied permission for retrenchment by the Government.

It is another matter that the chances of the disputes being referred for adjudication are quite remote. But the point to note is that the occasion to raise the demand/dispute comes after going through the statutory provisions of B Section 25N of ID Act. [Para 27] [710_-F-H; 711-A-B]

2.3. In the instance case, on the material date, there was no dispute on the basis of any demand raised by the appellant with regard to retrenchment of any workers in C the factory. Secondly, and more importantly, any retrenchment of worker(s) can only be effected by following the provisions laid down under ID Act, and the Rules. It follows that it is not open to the management to make a demand/proposal for retrenchment of workmen and disregarding the' provisions of the Act ask the D Government to refer the demand/dispute under section

10(1) to the tribunal for adjudication. The only demand raised by the management regarding imposition of ceiling on dearness allowance was already referred to the Industrial Tribunal. Hence, the appropriate Government E was fully competent and empowered to issue the impugned order prohibiting closure of the factory. There was no illegality or infirmity in the closure notice. [Para

29] [713-B-E]

F Workmen of Meenakshi Mills Ltd. and Ors. vs.

Meenakshi Mills Ltd. and Anr. (1992) 3 SCC 336, followed.

Oswal Agro Furane Ltd. and Anr. vs. Oswal Agro Furane Worl<ers Union and Ors. (2005) 3 sec 224, relied on.

G State of Madras vs. C.P. Sarathy and Anr. 1953 (4) SCR 334, held inapplicable.

Delhi Administration, Delhi vs. Workmen of Edward Keventers (1978) 1 SCC 634; The Management of Express H Newspapers Ltd. vs. Workers and Staff Employed Under It

and Ors. 1963 (3) SCR 540; Management of Kairbetta Estate,

EMPIRE INDUSTRIES LTD. v. STATE OF 691

MAHARASHTRA & ORS.

Kotagiri vs. Rajamanickam and Ors. 1960 (3) SCR 371; D.D.

A Gears Ltd. vs. Secretary (Labour) and Ors, 2006 Lab. I. C. 1462; Meal Box India Ltd. vs. State of Tamil Nadu and Ors. 1995 II L.L.N. 814, referred to.

Case Law Reference:

(1978) 1 sec 634 referred to.

Para 4

1963 (3) SCR 540 referred to.

Para 5

1960 (3) SCR 371 referred to.

Para 5

2006 Lab. I. C. 1462 referred to.

Para 6

1995 II L.L.N. 814 referred to.

Para 6

1953 (4) SCR 334 held inapplicable. Para 19

(1992) 3 sec 336 followed.

Para 27

(2005) 3 sec 224 relied on.

Para 28

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3003 of 2005.

From the Judgment & Order dated 1.4.2005 of the High Court of Judicature at Bombay in Letters Patent Appeal No. 70 of 2001.

Shanti Bhushan, K.M. Naik, Arun R. Pedneker, V.N.

Raghupathy for the Appellant.

Colin Gonsalves, Jayshree Satpute, Jyoti Mendiratta, Chinmoy Khaladkar, Sanjay Kharde (for Asha G. Nair) for the Respondents.

The Judgment of the Court was delivered by

AFTAB ALAM, J. 1. The appellant, which is a public limited company incorporated under the Companies Act, 1956 seeks to challenge the order dated September 23, 1992 issued

A by the Government of Maharashtra in exercise of the powers conferred by sub-section (3) of section 10 of the Industrial Disputes Act, 1947 (for short 'the Act') prohibiting continuance of the lock-out in its factory, Garlick Engineering at Ambernath, Thane.

2. The appellant first challenged this order before the Bombay High Court in Writ Petition No.6051/1995. The writ petition was dismissed by a learned single judge of the court by judgment and order dated February 9, 2001. Against the judgment of the single judge, the appellant preferred an internal C court appeal (LPA No. 70 of 2001) which too was dismissed by a division bench of the court by judgment and order dated April 1, 2005. The appellant has now brought the matter in appeal before this Court.

3. It may be stated here that during the course of this protracted litigation the factory was closed down on April 26, 1999 and since then it remains closed. The validity of the factory's closure is not in issue. This means that the relevance of the present appeal is only for the period September 23, 1992 E (the date on which the prohibition order was issued) to April

26, 1999 (when the factory was finally closed down). In case, the impugned prohibition order is held legal and valid and the appeal is dismissed the lock-out in the factory after September 26, 1992 would be illegal in terms of section 24(0) of the Act and the appellant would be liable to face the legal F consequences. If, on the other hand the appeal succeeds and the prohibition order is struck down as illegal and invalid, that would be the end of the matter.

4. Mr. Shanti Bhushan, learned Senior Advocate, G appearing for the appellant assailed the government order prohibiting the continuance of lock-out in its factory, Garlick Engineering by raising a simple point. With reference.to the closure notice, he submitted that the closure of the factory was in connection with three demands, namely, (i) the workmen H

should abjure agitational activities and desist from intimidation A and acts of violence, (ii) the workmen should accept a ceiling on dearness allowance and (iii) the workmen should agree to reduction of the workforce and retrenchment of a number of workers. He further submitted that out of the three demands the government had referred only one concerning the ceiling on B dearness allowance for adjudication to the Industrial Tribunal and yet issued the notice prohibiting closure of the factory. Mr.

Shanti Bhushan contended that as long as all the demands leading to the strike or the lock-out were not referred to adjudication under section 10(1) of the Act, it was not open to c the government to prohibit the strike or the lock-out, as the case may be. Learned counsel submitted that the government would derive the legal authority to prohibit a strike or a lock-out in terms of section 10(3) only after it had referred for adjudication

all the disputes leading to the strike or the lock-out, as the case D may be. He further submitted that it was not open to the government to refer selectively only a few out of several demands for reference and yet prohibit the lock-out or the strike in connection with those demands and, thus, close all doors for the concerned party for realization of the demands that were left out of reference. He submitted that this position would be E clear from a plain reading of section 10(3) of the Act which is as follows:

10(3): Where an industrial dispute has been referred to a Board, Labour Court, Tribunal or National Tribunal under F this section, the appropriate government may by order prohibit the continuanc.e of any strike or lockout in connection with such disputes which may be in existence on the date of the reference."

(Emphasis added)

Learned counsel submitted that the power and the authority to prohibit a strike or lock-out could be exercised only in respect of such dispute(s) that had been referred to a Board, Labour

A Court, Tribunal or National Tribunal. It necessarily followed that in case some of the disputes that had led to the strike or lock- . out, as the case may be, were left out of the reference made under section 10( 1) of the Act, the precondition for invoking section 10(3) would not be satisfied and it would not be B permissible for the government to issue the prohibition order under that provision. In support of the submission, he relied upon a decision of this Court in Delhi Administration, Delhi 171 03/2010vs. Workmen of Edward Keventers, (1978) 1 SCC

634. In paragraphs 2, 4 and 6 of the decision on which reliance c was placed by Mr. Shanti Bhushan the Court observed as follows:

"2. A plain reading of the sub-section leaves no room for doubt in our minds that the High Court has correctly interpreted it. Indeed, the learned Judges have gone into details, although we in this affirming judgment desire to express ourselves only briefly. Two conditions are necessary to make Section 10(3) applicable. There must be an industrial dispute existing and such existing dispute must have been referred to a Board, Labour Court, Tribunal or National Tribunal under this section, namely, Section .1.lli.1l. Section 10 stands as a self-contained code as it were so far as this subject-matter is concerned. The prohibitory power springs into existence only when such dispute has been made the subject of reference under Section .1.lli.1l. What then is such dispute? The suchness of the dispute is abundantly brought out in the preceding portion of the sub-section. Clearly, there must be an industrial dispute in existence. Secondly, such dispute must have been already referred for adjudication. Then, and then alone, the power to prohibit in respect of such referred dispute can be exercised.

4. Shri Aggarwal pressed before us a ruling reported in Keventers Karmachari Sangh v. Lt. Governor of Delhi

(1971) 2 LLJ 375, decided by the Delhi High Court.

Although the ratio there is contrary to the same High Court's A ruling which is the subject-matter of the present appeal, we are obviously inclined to adopt the reasoning of the judgment under appeal. Imagine twenty good grounds of dispute being raised in a charter of demands by the workmen and the appropriate Government unilaterally and B subjectively deciding against the workmen on nineteen of them and referring only one for adjudication. How can his result in the anomalous situation of the workmen beihg deprived of their basic right to go on strike in support of those nineteen demands. This would be productive not of c industrial peace, which is the objective of the Industrial Disputes Act, but counter-productive of such a purpose. If Government feels that it should prohibit a strike under Section 10(3) it must give scope for the merits of such a dispute or demand being gone into by some other D adjudicatory body by making a reference of all those demands under Section .1Q(1) as disputes. In regard to such disputes as are not referred under Section .1Q(1), Section 10(3) cannot operate. This stands to reason and justice and a demand which is suppressed by a prohibitory order and is not allowed to be ventilated for adjudication E before a Tribunal will explode into industrial unrest and run contrary to the policy of industrial jurisprudence.

6. While we appreciate the strenuous efforts made by Shri Aggarwal to support the judgment and perhaps sympathise F with him on the particular facts of this case, we cannot agree that hard cases can be permitted to make bad law.

The appeal is dismissed, but since the workmen for obvious reasons have not been able to represent themselves in this Court, the normal penalty of costs G against the appellant who loses cannot follow. The appeal is dismissed, but for the reasons above stated, there will be no order as to costs. "

5. Mr. Shanti Bhushan submitted that though the decision H

A in Workmen of Edward Keventers was rendered in a case of strike by workmen, for the present case the court should read it by substituting the word "lock-out" for "strike". Learned counsel submitted that lock-out was the obverse of strike and in industrial law strike and lock-out were the two sides of the a same coin. The. decision in Workmen of Edward Keventers

would, therefore, equally apply to a case of lock-out. In support of the submission he relied upon two decisions of the Supreme Court, one in The Management of Express Newspapers Ltd. vs. Workers & Staff Employed Under It and Ors., 1963 (3) SCR c 540 and the other in Management of Kairbetta Estate, Kotagiri vs. Rajamanickam and Ors., 1960 (3) SCR 371.

In Management of Express Newspapers Ltd., it was observed as follows:

" ... The theoretical distinction between a closure and a lockout is well settled. In the case of a closure, the employer does not merely close down the place of business, but he closes the business itself; and so, the closure indicates the final and irrevocable termination of the business itself. Lockout, on the other hand, indicates the closure of the business itself. Experience of Industrial Tribunals shows that the Lockout is often used by the employer as a weapon in his armoury to compel the employees to accept his proposals just as a strike is a weapon in the armoury of the employees to compel the employer to accept their demands ... ."

And in Management of Kairbetta, it was observed as follows:

G " ... Even so, the essential character of a lock-out continues to .be substantially the same. Lock-out can be described as the antithesis of a strike. Just as a strike is a weapon available to the employees for enforcing their industrial demands, a lock-out is a weapon available to the employer H to persuade by a coercive process the employees to see

his point of view and to accept his demands. In the struggle A between capital and labour the weapon of strike is available to labour and is often used by it, so is the weapon of lock-out available to the employer and can be used by him. The use of both the weapons by the respective parties must, however, be subject to the relevant B provisions of the Act. Chapter V which deals with strikes and lock-outs clearly brings out the antithesis between the two weapons and the limitations subject to which both of them must be exercised .... "

6. Apart from the decisions of the Supreme Court, Mr. c

Shanti Bhushan also relied upon a decision of the Delhi High Court in D.D. Gears Ltd. vs. Secretary (Labour) and Ors., 2006 Lab. I. C. 1462 and another of the Madras High Court in Metal Box India Ltd. vs. State of Tamil Nadu & Ors., 1995 II L.L.N.

814. In the two High Court decisions the notices issued by the D respective governments under section 10(3) prqhibitiRg-ttle locit-.out of the faGtopt-by--themanagermmtwere held to be bad and illegal under similar circumstances, by applying the same reasoning as advanced by Mr. Shanti Bhushan and relying upon the decisions of this Court in Workmen of Edward Keventers E . and Management of Expres Newspapers Ltd.

7. On the basis of the submissions made above, it was submitted that the prohibition notice coming undefr challenge in the present appeal was equallylfable to be struck down.

8. The point so carefully crafted by Mr. Shanti Bhushan appears to be quite unexceptionable and there may not be any quarrel with the proposition that in a case where the strike or the lock-out is in connection with a number of disputes, the appropriate government would derive the authority and the G power to prohibit, the lock-out or the strike, as the case may be, only if alt the disputes are referred for adjudication under section 10(1) of the Act. ..

9. But let us see, how fa'r the proposition applies to the present case.

10. We must begin with a brief summary of the facts of the present case. The appellant company had a division called B Garlick Engineering at Ambernath which was engaged in the manufacture and sale of E.O.T. cranes. The undertaking maintained its own profit and loss account separately. Before the present conflict started between the parties, the employer and the workmen of the undertaking were bound and governed by the last settlement arrived at between the two sides on C December 24, 1986. This settlement expired in June 1989 and on its expiry the third respondent submitted a charter of demands to the appellant. At that time the undertaking was in dire straits, so much so that at the end of 1990 its overhead losses for the past twenty seven months roughly worked out to D Rs.9.89 crores as against the paid up public capital of Rs.5,99,99,980/-. It was not in a position even to pay the electricity charges and the provident fund dues of the employees. The appellant responded to the workmen's charter of demands by letter dated September 15, 1990, stating that E it would be impossible to agree to any increase in wages and further that the only way forward was to impose a ceiling on the dearness allowance. This letter was followed by a notice dated November 24, 1990 given under section 9A of the Act. In this notice, the appellant proposed to peg the amount of dearness F allowance of monthly and daily rated workmen at the cost of living index number 4524 worked out for the month of October

1990. In the notice, the appellant declared its intention to "effect the change to the effect that irrespective of the rise in the level of CPI over the CPI No.4524 as worked out in the month of G October 1990, no workman shall receive DA over and above the CPI No.4524.". The workmen rejected the proposal and refused to accept any ceiling on dearness allowance. The dispute which, thus, arose between the employer and the workmen was taken up for conciliation under sections 11 and H 12 of the Act. The conciliation, however, ended in failure on

September 10, 1991 and the failure report submitted by the A conciliation officer concluded by stating as follows:

"During the conciliation proceeding the Management did not attend the hearings most of the time & also did not put up any documents to show its worsening financial position since there was no possibility of settlement the failure was recorded and the conciliation proceedings were concluded on 10.9.1991."

In this connection, Mr. Colin Gonsalves, learned Senior Advocate for respondent no. 3, also invited our attention to the C affidavit-in-reply filed by the State in the LPA filed by the petitioner before the division bench of the High Court from which the present appeal arises. In paragraph 3 of its affidavit, the State stated as follows:

" .. ,. During conciliation proceedings, the Management did D

not attend the hearing most of the time and also has not shown any documents to show its worsening financial position. Since there was no possibility of settlement, failure was recorded and the conciliation proceedings were E concluded. Hereto annexed and marked as EXHIBIT- "3" is the copy of the failure report dt.27.3.1992 submitted to the Government and copy was given to the respective parties ... "

11. On receipt of the failure report of the conciliation F proceedings, the state government referred the dispute concerning the ceiling on dearness allowance to the Industrial Tribunal, Thane under section 10(1) of the Act vide order dated February 12, 1992 which gave rise to Reference (IT) 3 of 1992.

12. Even before its demand concerning imposition of ceiling on dearness allowance was referred by the state government for adjudication to the Industrial Tribunal, the appellant issued the lock-out notice on September 28, 1991.

In the notice, the reason for the proposed lock-out was stated

A as follows:

'The Management endeavoured to impress upon the office bearers/members of the said Association that the Management is not at all in a position to concede any further demands and they should agree for ceiling on DA.

In addition to this, the office bearers/members of the Association were during several meetings, advised by the representatives of the Management that they should also agree for reduction of surplus, labour as it is not economically viable to run the said factory with the existing manpower/labour force. The office bearers/members of the said Association were sought to be taken into confidence from time to time by the Management and explained to them that the very existence/survival of the Undertaking is at stake and that they should see the reasons and realities and give up their Charter of Demands and they should agree to the ceiling of reduction in DA and reduction of surplus labour as also give up unlawful/agitational activities. However, no wiser counsel prevailed upon them. On the contrary, they resorted to various agitations/illegal/unlawful activities from time to time."

Here, it needs to be made clear that it was on the basis of the above passage in the lock-out notice that Mr. Shanti Bhushan F argued that the lock-out was in connection with three materially separate demands. One, relating to the agitational activities of the workmen and the alleged intimidations and acts of violence committed by them, the other in respect of the imposition of ceiling on dearness allowance and the third, with regard to the G reduction in the workforce and the retrenchment of a number of workers.

13. In reply, Mr. Colin Gonsalves, submitted that in regard to the alleged agitational activities of the workmen, the appellant had already filed a complaint under section 26 read H with Item Nos.5 and 6 of Schedule Ill of the Maharashtra

Recognition of Trade Unions and Prevention of Unfair Labour A Practices Act, which was registered as Complaint (ULP) No.368 of 1991 in the Industrial Court of Maharashtra, Thane, titled Mis Garlick Engineering Ambemath vs. Association of Engineering Workers and Ors. On July 24, 1991, the date of filing of the complaint, the appellant had also obtained an ex 8 parte order of injunction against the workmen. The complaint was eventually dismissed because the appellant stopped taking any steps in the proceeding but once having taken resort to the provisions of Maharashtra Recognition of Trade Uriions and Prevention of Unfair Labour Practices Act, any proceeding c under the Industrial Dispute Act was barred by section 59 of the former Act and, therefore, there was no question of any reference of this particular demand by the petitioner under section 10( 1 ) of the Act.

14. Mr. Gonsalves is undoubtedly right insofar as the D appellant's grievance/demand with regard to the workmen's alleged activities are concerned. But in fairness to Mr. Shanti Bhushan it must be said that he did not much refer to this particular demand. His grievance was mainly with regard to the demand concerning retrenchment of a number of workers for E reduction of the workforce and the state government's omission to refer it for adjudication. ·

15. In so far as the demand concerning retrenchment of workers is concerned, Mr. Gonsalves countered that it was F equally a false alibi. He pointed out that the section 9A notice given by the management was only about putting a ceiling on dearness allowance paid to the daily rated and the monthly rated workers and there was no mention in it of any proposal for retrenchment of workers. Further, in the conciliation proceeding G that took place in pursuance of the section 9A notice it was perfectly open to the management to raise any additional demand concerning retrenchment of workers but the appellant did not even properly take part in the protracted proceedings that continued for about 10 months, much less raising any H additional demand.

SUPREME COURT REPORTS

[2010] 3 S.<;.R. ..

C.oming then to the lock-out notice in which the matter of retrenchment of workers was mentioned for the first time, Mr.

Colin Gonsalves pointed out the manner in which it was put: ·

" ... In addition to this, the office bearers/members of the Association were during several meetings, advised by the representatives of the Management that they should also agree for reduction of surplus, labour as it is not economically viable to run the said factory with the existing

.. manpower/labour force."

16. Mr. Gonsalves submitted that the matter of reduction of surplus labour was, thus, at best an advice by the appellant.

He contended that the retrenchment of workers was never presented to the workmen as a demand by the appellant, the non-acceptance or rejection of which could give rise to an D industrial dispute. In other words, on facts there was no

industrial dispute concerning the retrenchment of workers in the factory that could form the subject matter of any reference for adjudication under section 10( 1) of the Act.

17. From the legal point of view, Mr. Gonsalves argued that in the matter of retrenchment, the initiative always lies :n the hands of the employer and the employer can, at all times, take steps for retrenchment of workers subject of course to the provisions of the Act. Hence, the mere fact that the matter of

F retrer:ichment of workers was not referred for adjudication under section 10(1) cannot be taken as a plea to defy the prohibition order issued under section 10(3) of the Act.

18. In short, learned counsel submitted that so far as the issue of retrenchment of workers is concerned, as a matter of G fact, no such dispute between the parties had crystallised and come into existence for reference; further a dispute of such nature was not required to be referred for adjudication under section 10( 1) of the Act because the retrenchment of workmen was always within the power of the employer. Hence, its non .H

reference would not vitiate or invalidate the impugned closure A notice.

19. In reply to the submission of Mr. Gonsalves that no dispute concerning retrenchment of workmen ever came into existence, Mr. Shanti Bhushan submitted that for reference for B adjudication it was not necessary that a dispute should come into existence but an apprehended dispute could also be referred under section 10(1) of the Act. In support of his submission he relied upon a Constitution Bench decision of this Court in State of Madras vs. C.P. Sarathy and Anr., 1953 (4) C SCR 334. He cited the following passage from the decision:

"Moreover, it may not always be possible for Government, on the material placed before it, to particularise the dispute in its order of reference, for situations might conceivably arise where public interest requires that a strike or a D lockout, either existing or imminent, should be ended or averted without delay, which under the scheme of the Act, could be done only after the dispute giving rise to it has been referred to a Board or a Tribunal (vide sections 10(3) and 23). In such cases Government must have the power, E in order to maintain industrial peace and production, to set in motion the machinery of settlement with its sanctions and prohibitions without stopping to enquire what specific points the contending parties are quarrelling about, and it would seriously detract from the usefulnes of the statutory machinery to construe section .1Qill as denying such power to Government. We find nothing in the language of that provision to compel such construction. The Government must, of course, have sufficient knowledge of

the nature of the dispute to be satisfied that it is an G industrial dispute within the meaning of the Act, as, for instance, that it relates to retrenchment or reinstatement.

But, beyond this no obligation can be held to lie on the Government to ascertain particulars of the disputes before making a reference under section .1Q(1} or to specify them H

A in the order."

The proposition that an apprehended dispute can also form the subject matter of a reference under section 10( 1) of the Act is well established, but we do not see any application of the

8 principle or of the Constitution Bench decision relied upon by Mr. Shanti Bhushan in the facts of the case.

20. In reply to Mr. Gonsalves' second submission that since in the matter of retrenchment the initiative always remained in the hands of the employer, there was no need to make any C _reference of the demand of retrenchment made by the employer, Mr. Shanti Bhushan submitted that the employer might be free to carry out retrenchment of workers on its own but that would not prevent it to have the legal confirmation of its action in advance by raising a demand for retrenchment and D getting it referred for adjudication under section 10(1) of the Act.

The submission though apparently reasonable, is quite fallacious as it would nullify and render meaningless a whole lot of provisions of the Act.

21. Retrenchment is defined in the Act to mean termination of the service of a workman by the employer for any reason whatsoever, otherwise than as punishment for any misconduct and further subjet to the four exceptions enumerated in clauses (a), (b), (bb) and (c) of section 2(oo) of the Act. Retrenchment F being termination of service for no fault on the part of the workman is likely to visit the concerned worker(s) and his/their families with disastrous consequences. Retrenchment is an important and serious issue in industrial law since its wanton and improper use can become a major source of industrial G unrest and disharmony. The issue of retrenchment is, therefore, not left uncontrolled but is regulated in great detail by the law.

The Industrial Disputes Act lays down not only certain inflexible preconditions that must be satisfied before an employer can resort to retrenchment but also a detailed procedure following H which retrenchment can be carried out. Section 9A provides

that no employer proposing to effect any change in the A conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule shall effect such change without giving twenty one days notice in the prescribed manner of the nature of change proposed to be effected. Item

No.11 of the Fourth Schedule deals With any increases or B reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or . department or shift (not occasioned by circumstances over which the employer has no control).

22. Then, we come to Chapters VA and VB of the Act C which were inserted with effect from October 24, 1953 and March 5, 1976 respectively. Chapter VA contains sections 25A to 25H dealing with lay-off and retrenchment. Section 25A excludes the application of sections 25C to 25E to certain industrial establishments, including those covered by the D provisions of Chapter VB. Section 25B gives the definition of continuous service. Section 25F lays down the conditions precedent to retrenchment of workmen and requires the employer to give notice to the appropriate government/ prescribed authority apart from giving one month's notice in E writing or one month's wages in lieu of the notice and payment of retrenchment compensation to the concerned workman(en).

Section 25FF provides for compensation to workmen in case of transfer of undertakings. Section 25FFF provides for compensation to workmen in case of closing down of F undertakings. Section 25G lays down the procedure for retrenchment and provides that retrenchment should follow the principle of last come, first go. Section 25H deals with reemployment of retrenched workers. Section 25J has the nonobstante clause and lays down that the provisions of chapter G VA would have effect notwithstanding anything inconsistent therewith contained in any other law, including standing orders made under the Industrial Employment (Standing Orders) Act, 1946.

23. Chapter VB has "Special Provisions" relating to layoff, retrenchment and closure in certain establishments. The provisions of chapter VB (from section 25K to section 25S) apply to industrial establishments (not of a seasonal character or in which work is performed only intermittently) in which not B less than one hundred workmen were employed on an average per working day in the past 12 months. It is not in dispute that the number of workers employed by Garlick Engineering was in excess of hundred and, therefore, the industrial establishment was covered by the provisions of Chapter VB]. Section 25L C contains the definitions. Section 25M prohibits lay-off except under certain conditions. Section 25N lays down the conditions precedent for the retrenchment of workmen and it is as follows:

"25N. Conditions precedent to retrenchment ofworkmen.-

(1) No workman employed in any industrial establishment to which this Chapter applies, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until,-

(a) the workman has been given three months notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; and

(b) the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority) has been obtained on an application made in this behalf.

(2) An application for permission under sub-section (1) shall be made by the employer in the prescribed manner stating clearly the reasons for the intended retrenchment and a copy of such application shall also be served

simultaneously on the workmen concerned in the A prescribed manner.

(3) Where an application fur permission under sub-section

(1) has been made, the appropriate Government or the specified authority, after making such enquiry as it thinks 8 fit and after giving a reasonable opportunity of being heard to the employer, the workmen concerned and the persons interested in such retrenchment, may, having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the workmen and all other C relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen.

(4) Where an application for permission has been made D under sub-section (1) and the appropriate Government or the specified 'Uthority does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be E deemed to have been granted on the expiration of the said period of sixty days.

(5) An order of the appropriate Government or the specified authority granting or refusing to grant permission shall, subject to the provisions of sub-section (6), be final and binding on all the parties concerned and shall remain in force for one year from the date of such order.

(6) The appropriate Government or the specified authority may, either on its own motion or on the application made G by the employer or any workman, review its order granting or refusing to grant permission under sub-section (3) or refer the matter or, as the case may be, cause it to be referred, to a Tribunal for adjudication: H

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.

(7) Where no application for permission under sub-section

(1) is made, or where the permission for any retrenchment has been refused, such retrenchment shall be deemed to be illegal from the date on which the notice of retrenchment was given to the workman and the workman shall be entitled to all the benefits under any law for the time being in force as if no notice had been given to him.

(8) Notwithstanding anything contained in the foregoing provisions of this section, the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the establishment or death of the employer or the like, it is necessary so to do, by order, direct that the provisions of sub-section (1) shall not apply in relation to such establishment for such period as may be specified in the order.

(9) Where permission for retrenchment has been granted under sub-section (3) or where permission for retrenchment.is deemed to be granted under sub-section (4), every workman who is employed in that establishment immediately , before the date of application for permission under this settion shall be entitled to receive, at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in excess of six months."

Section 25Q lays down the penalty for lay-off and retrenchment without previous permission.

24. As may be seen from Section 25N, it has a complete H scheme for retrenchment of workmen in industrial

establishments where the number of workers is in excess of A hundred. Clauses (a) & (b) lay down the conditions precedent to retrenchment and provide for three months' notice or three months' wages in lieu of the notice to the concerned workmen and the prior permission of the appropriate government/ prescribed authority. Sub-section (2) & (3) plainly envisage the appropriate government/prescribed authority to take a quasijudicial decision and to pass a reasoned order on the employer's application for permission for retrenchment after making a proper enquiry and affording an opportunity of hearing

not only to the employer and the concerned workmen but also c to the person interested in such retrenchment. Sub-section (4) has the provision of deemed permission. Sub-section (5) makes the decision of the government binding on all parties.

Sub-section (6) gives the government the power of review and the power to refer the employer's application for permission to D a tribunal for adjudication. Any retrenchment without obtaining prior permission of the government is made expressly illegal by sub-section (7) with the further stipulation that the termination of service in consequence thereof would be void ab initio. Subsection (8) empowers the government to exempt the application of sub-section (1) under certain exceptional circumstances and sub-section (9) provides for payment of retrenchment compensation to the concerned workmen.

25. The'1procedural details for seeking prior permission of

the appropriate government for carrying out retrenchment under F section 25N are laid down in rule 76A of the Industrial Disputes Central Rules. The application for permission for retrenchment is to be made in Form PA and that requires the employer to furnish all the relevant materials in considerable detail.

26. It is, thus, seen that the subject of retrenchment is fully covered by the statute. It is not left open for the employer to make a demand in that connection and to.get the ensuing industrial dispute referred for adjudication in terms of section

10(1) of the Act

SUPREME COLJRT REPORTS

(2010] 3 S.C.R.

27. In face of such detailed regulatory mechanism provided for in the Act and the Rules, we find the submission of Mr.

Shanti Bhushan completely unacceptable. To say, that even without following the provisions of section 25N of the Act, it is open to the employer to raise a demand for retrenchment of B workmen and to ask the government to refer the ensuing dispute to the Industrial Tribunal for adjudication, would tantamount to substituting a completely different mechanism.in place of the one provided for in the Act to determine the validity and justification of the employer's request for retrenchment of c workers. It is true that under section 25N the authority to grant or refuse permission for retrenchment is vested in the appropriate government which in this case would be the state government or the authority specified by it. Under section 10(1) too it is the state government that would make a reference of

0 the industrial dispute. But the two provisions are not comparable. The nature of the power of the state government and its functions under the two provisions are completely different. In making the reference (or declining to make the reference) under section 10(1) of the Act the state government acts in an administrative capacity whereas under section E 25N(3) its power and authority are evidently quasi judicial in nature (see the Constitution Bench decision of this court in Workmen of Meenakshi Mills Ltd. and Ors. vs. Meenakshi Mills Ltd. and Anr., (1992) 3 SCC 336, paragraphs 28 to 30).

Further, though section 25N(6) has the provision to refer the F matter to the tribunal for adjudication, that provision is

completely different from section 10(1 ). A reference under section 10(1) of the Act cannot be used to circumvent or bypass the statutory scheme provided under section 25N of the Act.

This is, however, not to say that there cannot be any dispute G on the subject of retrenchment that can be referred to the

tribunal for adjudication. A dispute may always be raised by or on behalf of the retrenched workmen questioning the validity of their retrenchment. Similarly, the employer too can raise the dispute in case denied permission for retrenchment by the H government. [It is another matter that the chances of the disputes

being referred for adjudication are quite remote: see Workmen A of Meenakshi Mills Ltd., (supra) paragraphs 56 & 57]. But the point to note is that the occasion to raise the demand/dispute comes after going through the statutory provisions of section 25N on the Act.

28. The view taken by us is fully supported by a Constitution Bench decision of this Court in Workmen of Meenakshi Mills

Ltd .. In a more recent decision of this Court in Oswa/ Agro Furane Ltd. and Anr. vs. Oswal Agro Furane Workers Union and Ors., (2005) 3 sec 224, this Court even went to the extent C of holding that there cannot be any settlement between the parties, superseding the provisions of sections 25N and 250 of the Act. In paragraphs 14, 15 and 16, of the decision, the Court observed as follows:

"14. A bare perusal of the provisions contained in Sections D 25-N and 25-0 of the Act leaves no manner of doubt that the employer who intends to close down the undertaking and/or effect retrenchment of workmen working in such industrial establishment, is bound to apply for prior permission at least ninety days before the date on which E the intended closure is to take place. They constitute conditions precedent for effecting a valid closure, whereas the provisions of Section 25-N of the Act provides for conditions precedent to retrenchment; Section 25-0 speaks of procedure for closing down an undertaking.

F Obtaining a prior permission from the appropriate Government, thus, must be held to be imperative in character.

15. A settlement within the meaning of Section g_(Ql read with sub-section (3) of Section 18 of the Act undoubtedly G binds the workmen but the question which would arise is, would it mean that thereby the provisions contained in Sections 25-N and 25-0 are not required to be complied with? The answer to the said question must be rendered in the negative. A settlement can be arrived at between H

the employer and workmen in case of an industrial dispute.

An industrial dispute may arise as regard the validity of a retrenchment or a closure or otherwise. Such a settlement, however, as regard retrenchment or closure can be arrived at provided such retrenchment or closure has been effected in accordance with law. Requirements of issuance of a notice in terms of Sections 25-N and 25-0, as the case may, and/or a decision thereupon by the appropriate Government are clearly suggestive of the fact that thereby a public policy has been laid down. The State Government before granting or refusing such permission is not only required to comply with the principles of natural justice by giving an opportunity of hearing both to the employer and the workmen but also is required to assign reasons in support thereof and is also required to pass an order having regard to the several factors laid down therein. One of the factors besides others which is required to be taken into consideration by the appropriate Government before grant or refusal of such permission is the interest of the workmen. The aforementioned provisions being imperative in character would prevail over the right of the parties to

rrive at a settlement. Such a settlement must conform to the statutory conditions laying down a public policy. A contract which may otherwise be valid, however, must satisfy the tests of public policy not only in terms of the aforementioned provisions but also in terms of Section 23 of the Indian Contract Act.

16. It is trite that having regard to the maxim "ex turpi causa non oritur actio", an agreement which opposes public policy as laid down in terms of Sections 25-N and 25-0 of the Act would be void and of no effect. The Parliament has acknowledged the governing factors of such public policy. Furthermore, the imperative character of the statutory requirements would also be borne out from the fact that in terms of sub-section (7) of Section 25-N and sub-section (6) of Section 25-0, a legal fiction has ben

EMPIRE INDUSTRIES LTD. v. STATE OF 713

M~HARASHTRA & ORS. [AFTAB ALAM, J.]

created. The effect of such a legal fiction is now well- A known. [See East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1951) 2 All ER 587, Om Hemrajani v.

State of U.P., (2005) 1 SCC 617 and Maruti Udyog Ltd.

v. Ram Lal (2005) 2 sec 638."

29. In light of the discussions made above, we arrive at the conclusion that on the material date there was no dispute on the basis of any demand raised by the appellant in regard to retrenchment of any workers in the factory, Garlick Engineering. Secondly, and more importantly, any retrenchment ofworker(s) can only be effected by following the provisions laid C down under the Act and the Rules. It follows that it is not open to the management to make a demand/proposal for retrenchment of workmen and disregarding the provisions of the Act ask the government to refer the demand/dispute under section 10(1) to the tribunal for adjudication. The only demand D raised by the management regarding imposition of ceiling on dearness allowance was already referred to the Industrial Tribunal. Hence, the appropriate government was fully competent and empowered to issue the impugned order prohibiting closure of the factory. There was no illegality or E infirmity in the closure notice.

30. We find no merit in the appeal. It is, accordingly, dismissed with costs.

K.K.T.

Appeal dismissed.