JUDGMENT 1. Majority judgment:-Absolute, Unrestricted, Unbriddled right to conduct business, trade, industry, profession and vocation, having its origin in Adam Smith's doctrine of laissez faire' of 18th century was buried in graves, hen 20th century awakening, arising, and united struggle of "workers of the World" compelled the enactment of social welfare legislations and several labour laws. The founding fathers of Indian Constitution hastened to provide for State's right to put reasonable restrictions on the fundamental rights guaranteed under Article 19 of the Constitution of India. The "medieval borbaric autocratic right "Hire and Fire" came into 'fire' and the legislatures came out with plethora of Laws to "gun down" it. All such legislative efforts. were again brought under 'fire' by powerful resouresful employers by Judicial Scrutiny' claiming Article 19 as the protective umbrella for exploitation by 'long purses' of half naked starving, skeletons' who were slowly killing themselves, in and around furnaces. 2. The workmen of India after three decades of proclamation, of Preamble of ConstitutionJUSTICE, social, economic and political;EQUALITY of status and of opportunity; got high power stimulant in recognition of their right of 'labour participation in the management' by Article 43-A inserted by the 42nd Amendment Act, 1976, with the following high sounding directive- "43A. The State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry". The above, reinforced earlier directives of Article 38 directing the State to secure a social order for the promotion of welfare of the people, Article 39 securing that (a) the citizens, men and women equally, have the right to an adequate means of livelihood; (b) the ownership and control of the material resources of the community are so distributed as best to subserve the common good in the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; and Article 43 ensuring living wages fur workers. 3. 3. Article 43A was interpreted by the Apex Court in Hindustan Tin Works v. Employees ( AIR 1979 SC 75 ) and it was held, "since this Article has made labour a partner in industry, industry being regarded as a common venture of capital and labour, it would follow that if a sacrifice becomes necessary in the interest of an industry or a particular undertaking, such sacrifice would be equitably shared by both. Thus, if' the workmen were ready to work, but were kept away therefrom on account of an illegal act of the employer, the workmen should be paid their full back wages for that period". 4. The Judicial, as well as Social, Political activists and Jurists hailed Article 43A as the first active step towards socialism in India. after having inserted the word. "Socialist" in the preamble of the Constitution by the 42nd Amendment. The 44th Amendment retained it and further deleted "fundamental right to property" under Article 19 & 31 of the Constitution. 5. Insertion of Section 25-M, N, & O in the Industrial Disputes Act. 1947 were to carry out the mandate of Articles 38, 39, 43, 43A of the Constitution. 6. The judicial scrutiny by the Apex Court of Apex Constitutional powers of Article 141, next only to constituent powers of Article 368, struck down material parts of 25-0 of the Industrial Disputes Act. 7. The Excel Wear's Bull Excel Wear v. Union of India ( AIR 1979 SC 25 ) , having 141 Super Horse Power, is now making constitutional attakes on Sections 25-M & 25-N of the Act. Having succeeded at Madras K.V. Rajendra v. Dy. Commnr. of Labour (1980 11 LI J 275) , and K Gurumurthy v. Simpson & Co. Madras (1981 11 LLJ 360) , though contained in Andhra Pradesh General Industrial Society v. Comm. of Labour Hyderabad & others (1980 (2) Andhra Weekly Reporter p 92 42 1- LR 6) & I.D.L. Chemicals Ltd. v. V. Gattiah and others D.B. Writ Petition/ Appeal No. 16/81 decided on 4.12.1981 by Andhra High Court, but the container of the Andhra Pradesh was again contained by Apex Court by Stay order ( Special CAMP No. 29412 of 1981 in Civil Petition No. 3351/81 IDL Chemicals v. Gattiah , S tay confirmed on 15-4-82 by S C.) . it hat now, uprooted 3000 workmen, making them unemployed overnight, homeless jobless in the Chambal greenary and Industrial gold mines of Rajasthan. 8. The billion dollar questions posed before us in these twin writ petitions, first by the workmen and second by the Management Company, are many, but the principal pivotal question of questions, issue of issues and problem of problems is- Whether from Excel Wear's Apex Article 141, striking down of Section 25-0, Section 25-N of the Act, can or cannot be saved ? 9. The triology of this big constitutional debate consists of Article 141, 19 and Preamble & Directive principles, referred to above. 10. Equally important facet of Judicial frontiers test is, whether in order to redeem. ourselves, from the charge of "captive Agencies" of status quo & Naves' and for playing an activist's role and by adopting a vilrant activist posture for keeping pace, if not forcing socio-economic change for bringing 'SOCIAL Justice for giving relief to 3000 retrenched workmen, we can climb or jump the constitutional hurdle of Article 141 to 144 ? 11. An ancilliary facet relating to legislative snail moving speed. in re- enactment of S. 25-0, but keeping it an empty vessel, without enforcing it, and assurance of amending Sections 25-M & 25-N on the lines of S. 25.0, but lake executive directions to the States, to legislate and amend Sections 25-0, 25-M & 25-N, with the Apex central executive and legislature remaining silent spectator to mass sacking of workmen, on the dead corpse of 25-0, M & N, due to Excel Wear's Bull, will have to be noticed for evaluating what homage is being paid to Articles 38, 39, 43 & 43A of the Constitution ? 12. With the above preface and before narrating the traditional facts of the twin writs, we would take notice of the high pitch of the debate before us. which gave us sufficiently creative & constructive learning in the new horizons of Labour laws", from eminent Senior Advocate Shri F. S. Nariman, peached against another eminent Trade Union leader Shri Punamia Mohan, equally and rather more well versed and expertise of Labour Laws', assisted by Shri B. L. Samdaria Advocate and supported by Shri N. L. Jain, Advocate General of the State. 13. 13. The usual difference between the appeal, contentions and arguments of -head as against heart' which sometimes becomes latent and mixed up was patent and outrageously visible, when we heard with great rapt attention and care. the submissions of eminent Senior Advocate Shri F. S. Nariman on behalf of the employers, management- M/s Jaykaylon Synthetics Ltd. and, the comrade, Shri Mohan Punaruia, the President of' the workmen's Union, the petitioner, himself, in person, alongwith Shri B. L. Samdaria, the learned counsel for the Rajasthan Trade Union Kendra, in the course of long drawn and prolonged debate on the validity of S. 25-N, the Industrial Disputes Act, 1947 (the Act, for short). 14. Whereas the sum up by Shri Narintan was in the form of 'concise and crystallized submission note' read over to us for precision and exactness, Shri Punamia ended with an appeal to the court, but not by his own words even of heart hut a few classical words of appeal of the father of the Nation. Mahatma Gandhiji, utilised by Krishna Iyer J.. during the decision of Gujarat Steel 'Tubes v. Guj. Steel Tubes Mazdoor Sabha 1980 1 LLJ 137 (SC) - (1980) 56 FJR 17 , emotional words- "Whenever you are in doubt......... apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you centemplate is going to be of any use to him." 15. It was obvious that Shri Punamia's arguments were coming straight from heart and Shri Nariman's contentions coached in superlative constitutional legendary were having an edge of head over the heart. We therefore, lost our most of the time in persuading ourselves and making efforts to dive in depth of the brilliant submissions equally balanced from both sides spearheded by Shri Nariman for the employer and Shri Punamia, the petitioner, in writ petition No. 213 of 1983, for 3500 workmen sacked by retrenchment. 16. We therefore, lost our most of the time in persuading ourselves and making efforts to dive in depth of the brilliant submissions equally balanced from both sides spearheded by Shri Nariman for the employer and Shri Punamia, the petitioner, in writ petition No. 213 of 1983, for 3500 workmen sacked by retrenchment. 16. If we steer clear through the sentimental echos and enter into the arena of legal debate and gimmicks on the constitutional pedestal, pivot of the debate regarding the validity of S. 25-N of the Act requires its adjudication by legal dual of the two sides, within a frontier circumscribed, four-cornered, and 'touch stones' of the apex decision of the apex court of this country in Excel Wear and others v. Union of India and others ( AIR 1979 SC 25 ) , which has twin legacies, first in the decision; of Madras High Court in K.V. Rajendra v. Dy Commissioner of Labour, Madurai ( 1980 (2) LLJ 275 ) , & (l) K. Gurumurthy v. Simpson and Co. Madras ( 1981 (2) LLJ 360 ) (for short, the Madras view), second in the decision of Andhra Pradesh High Court (for short, the Andhra view) in General Industrial Society v. Commissioner of Labour 1980 (1) Andhra Weekly Reporter 92) . 17. Both these views are again in legal debate and judicial scrutiny in the apex Court in the Special CMP No. 29412 of 1981 in Civ. Pet. No. 3351 of 1981 I.D.L. Chemicals Ltd. v. T. Gattiah & others with the only difference, that the operation of the Judgment of-Andhra Pradesh High Court in D.B. writ Appeal No. 16,81 (1.D.L. Chemicals Ltd. v. T. Gattiah and others , decided on 4-12-1981) which has been filed against the order dated 8-12-1980 of the Single Bench of Andhra Pradesh High Court in S. B. Writ petit ion No. 1983/80 (unreported) following the decision in General Industrial .Society's case (supra) (Andhra view) has been stayed but it is not so in respect of the Madras view, as informed by Shri Nariman whose version was not contradicted. 18. S. 25-N of the Act is a bridle on the authority and power of the management-employer to retrench its employees after compliance of S. 25-F and S. 25-G of the Act in case the number of employees are more than 300, which, is precisely the case in the present controversy raged at the Bar. 18. S. 25-N of the Act is a bridle on the authority and power of the management-employer to retrench its employees after compliance of S. 25-F and S. 25-G of the Act in case the number of employees are more than 300, which, is precisely the case in the present controversy raged at the Bar. 19. Shri Punamia, with his profound knowledge of labour laws, their developments, history and functioning, successfully drew a graphic picture of the amendment in the form of S. 25-N of the Act. According to him, immediately after second World War, there was crysis in the industrial field and the economical exigencies warranted large scale removal and termination of the employees. It was, in these circumstances, that the concepts of -retrenchment' have been introduced in the industrial law in order to safeguard and regulate the powers of the employers, as earlier, on account of the old obsolete capitalist's philosophy of 'laisez faire', employers resorted to technique of 'hire and tire', which was unbriddled, unrestricted, arbitrary, naked based on whims, caprice and fancy of the employers. Having its origin in preconstitution era of India, the constitution when framed embodied 'social justice' as one of the principal object to be achieved by Independent India, after throwing foreign yoke of the dependence, of the British rule. 20. Shri Punamia then drew our attention to the developments, which took place after the Independence and framing of the Constitution, and stated that it was realised and felt by the Parliament that the powers of retrenchment under S. 25 of the Act were misused and abused and in big industries, wholesale sacking was done on mass scale, taking the advantage of only requirement of notice or one months' pay or compensation. 21. The employers did not bother about the outcome of the Industrial Tribunal's adjudication, about justness of the retrenchment, because the workmen were thrown on the road and the industrial adjudication used to come after many years, with some one taking even one decade and by that time the entire complexion of the labour and composition altered and changed giving an edge to the employer who dictate terms to the workmen at the formers' sweet will. 22. 22. Committed to the 'social justice' concept, the Parliament intervened and introduced S. 25-N and S. 22-O of the Act both together in the year 1976 an year in which the Constitutional changes of introducing labour's participation in management by amendment of the Directive principles to the constitution also took place. This was for stopping wholesale mass-sacking under the garb of retrenchment on insufficient fanciful reasons against -Public interest' either as an 'unfair labour practice' or for victimisation of workmen as a whole or for unreal economic profit motive objectives of the employers. 'Prior permission' of the State Government in cases of 'retretchment' 'lay-oil'', and 'closure', was thus made "sine quo non" for retrenchment or closure. 23. The State being the 'social welfare State' as per amended preamble of the Constitution, its Directive principles are committed to protect underdogs, downtro dden, weaker sections of the society and the workmen in industries who form an important segment of this category of weaker sections. Shri Punamia, therefore, pleaded that them provisions of Ss 23-M. 25-N and 25-O of the Act are to be viewed, understood, interpreted and given effect in this background that they carry forward the social object of the Constitution and act as 'nuclear umbrella' against arbitrary actions of mass retrenchment by the employers. 24. We have, with rapt attention, listened to the above heart appealing thesis of Shri Punamia and hardly any one can doubt the objectives of the legislation. So much spell bound were the listeners that even Shri Nariman commended this objective of the amendment introduced in 1976 year, incorporating Sections 25-M, 25-N and 25-0 in the Act. 25. Now. let us marshal the peculiar facts of these two writs, before we proceed further to analyse discuss, and adjudicate, various constitutional legal issues, where S 25-N of the Act has come into "fire" in the instant cases; in which the employers want to blow it oil" being unconstitutional and violative of Art 19 (I) (g) of the Constitution and the workmen want to blow off retrenchment, without State's permission in flagrant disregard, clear contravention and parent violation of S 25-N of the Act by not obtaining prior permission of the State Government. 26. 26. The twin writs, first, by the employer-management being writ petition 409/83 and the second one by the workmen being writ petition No 213/83 raise the questions regarding the, validity of retrenchment admittedly done by the industrial company, M/s Jaykaylon Synthetics Ltd. Kota. 27. The Company-management set up at Kota 4 plants/divisions knowns as, 1. Nylon Plant/Division for the manufacture of Nylon/Polyester Filament Yarn which is divided into two parts, viz- (a) Section producing nylon/ polyester filament yarn (base yarn). (b) Section processing base yarn (nylon, polyester filament yarn) produced in Section (a) for added value by crimping draw texturising, twisting, dyeing, coning etc. 2. Tyre Cord Plant Division for the manufacture of Nylon Tyre Cord and Fabric. 3. Synthetic Staple Fibre plant/Division for manufacture of Polyester Staple Fibre, tow and tops. 4. Acrylic Fibre plant; Division for manufacture of Acrylic Fibres, tow and tops. 28. It is alleged by the Company that in the year 1980-81, all the four plants/divisions were facing various economic problems and difficulties and despite every effort made by the Company, to counter forces, the same had a marked effect on the financial position of all the said four plants/divisions. 29. The case of the company further is that in the year 1982, 'nylon plant' made huge loss for the fiat time in the history of the Company. The Company therefore, requisitioned the services of M/s Industrial Development Services (IDS), a leading consultant, to assess and formulate the methodology and guidelines based on which a study would be carried out by the Industrial Engg. & Productivity Services (IEPS) deptt of the Company. In September- December, 1982, the IEPS carried on studying on the basis of methodology and guidelines given by I.D S. for all the four plants. The Company engaged the services of E.M.S. (INVENTA) of Switzerland, a leading synthetic fibre engineering, manufacturing and consultant company in order to have an outside expert body to study the matter and this study was to cover the nylon division only. 30. After studying all these reports, the Company found that the processes in the nylon plant/division (Section (b) of Nylon plant) which were wholly unremunerative and were a drain on the profitability of Nylon plant/division, decided to discontinue the said processes and the interconnected activities, which resulted in making and sacking 1 166 workers surplus. 31. 30. After studying all these reports, the Company found that the processes in the nylon plant/division (Section (b) of Nylon plant) which were wholly unremunerative and were a drain on the profitability of Nylon plant/division, decided to discontinue the said processes and the interconnected activities, which resulted in making and sacking 1 166 workers surplus. 31. A decision by the Company was taken to retrench 1166 workers in Section (b) of the nylon plant. The notices of retrenchment' were given, to the workers of nylon plant consequent to discontinuance of processes of crimping etc., on 15th January, 1983. On January 17, 1983. another 689 workers were found to be surplus in each of the four plants and, were served upon such notices of retrenchment. In addition to the above retrenchment of workers, on 18th, 24th and 31st January, 1983, 233 and 146 workers were found to be surplus in each of the four plants; 22 workers in Nylon Division were declared as surplus and, after having served the notices of retrenchment upon the workers, they were retrenched. Further, 15 workers were served with notices of retrenchment consequent to discontinuance of processes of crimping etc., of nylon plant and they were retrenched on 31st January, 1983. 32. In each of these notices of retrenchment, the workers were tendered three months' wages in lieu of notice. They were also tendered retrenchment compensation at the rate of half months' wages of each completed year of services as contemplated under S. 25F of the Act and the tender was by Bank-darft along with a separate letter. 33. The Company also sent a notice to the Government of Rajasthan in the form prescribed under S. 25F of-Act in respect of the retrenchment of 1149 workers of Nylon plant consequent to discontinuation of processes of crimping etc. and 504 workers found surplus in the Nylong plant, on 21st January, 1983. 34. The reasons given for retrenchment of workmen were stated as follows : (1) For 1151 workmen : "All post draw twisting, medium speed and high speed spinning processes for the production of nylon and polyester yarns have become unremunerative and as such, for reasons of economy and business expediency, the Company decided to discontinue these processes of crimping texturising, dyeing. coning and their interconnected processes and activities". coning and their interconnected processes and activities". (2) For 504 workmen : "In view of declining profits, of nylong division; substantial losses incurred in immediate past, greater and increasing competition of its products, the company, in the interest of continuity of business has decided to effect economy in its operations, and, as a part thereof, it has become necessary to effect retrenchment of surplus work force employed." (3) For 134 workmen : "In view of declining profits of nylong Tyre Cord Division, grater and increasing competition of its products. the interest of continuity of business, has decided to effect economy in its operations and, as a part thereof, it has become necessary to effect retrenchment of surplus work force employed." (4) For 211 workmen : "In view of declining profits of Synthetic Staple Fibre division, substantial losses incurred in immediate pas,. greater and increasing competition of its products, the company in the interest of continuity of business, has decided to effect economy in its operations and, as part thereof. it has become necessary to effect retrenchment of surplus a work force employed." (5) For 74 workmen : "In view of declining profits of Acrylic Division, substantial lossess incurred in immediate past, greater and increasing competition of its products, the company in the interest of continuity of business, has decided to effect economy in its operations, and as part thereof. it has become necessary to effect retrenchment of surplus work force employed." 35. The case of the petitioner is, that on January 25, 1983, the Labour Commissioner and Deputy Secretary to the Government of Rajasthan made enquiries with regard to the retrenchment and that the following queries were made:- 1. Why the procedure as detailed under S. 25-N sub-section (1) (c) of Chapter V-B of the Industrial Disputes Act, 1947 was not adopted before resorting to these retrechments ? 2. Furnishing the detailed information justifying the causes mentioned in the respective Annexure-A of the above mentioned two letters. These queries were replied on 1st February, 1983. In the reply, the Company took the stand that S 25-N was unconstitutional and void. So far as the reasons for retrenchment are concerned, the same were given in the reply. 36. 2. Furnishing the detailed information justifying the causes mentioned in the respective Annexure-A of the above mentioned two letters. These queries were replied on 1st February, 1983. In the reply, the Company took the stand that S 25-N was unconstitutional and void. So far as the reasons for retrenchment are concerned, the same were given in the reply. 36. In the meanwhile, on 31st January, 1983, the Union of the workmen filed writ petition No. 213/83 and while issuing show-cause notice, a restraint order was issued by this Court from retrenching any more employees. 37. On February 19, 1983, a notice was issued by the Labour Commissioner and Deputy Secretary to the Govt. requiring Shri Sitaram Singhania and Shri S. S. Misra, as to why they should not be prosecuted in the scatter of retrenchment of workmen for violation of S. 25-N (1) (c) of the Act. 38. On March 7, 1983, the writ petition of the Company (No. 409/1983) was admitted alongwith the Union's writ petition (No. 213/1983) and the directions were given that no further retrenchment could be done and the workmen would he entitled to take money and encash the draft sent to the workmen alongwith the retrenchment notice. 39. The learned Single Bench (per Bhargava J..) further directed that cases should be put before the Chief justice of this Court for making reference to a larger bench in view of the fact that, the important questions of constitutional law are involved in the case. On March 17, 1983, the learned Single Bench stayed the prosecution proceedings against the employers. 40. On April 14, 1983, the stay order was further clarified and in compliance to this order about 800 workmen accepted compensation and wages without prejudice to their respective rights and contentions. 41. The Chief justice then considered the prayer of the learned Single Bench and directed that both the writ petitions should be heard and decided by this Full Bench of three judges. 42. The Union of India filed reply and so also the Company has also filed reply in the writ petition filed by the Union of the workers and the Union has been allowed to intervene in writ petition No. 409,/1983). On the joint request for permitting employers' association both of Kota and Rajasthan in these cases, we have allowed them to intervene. 43. On the joint request for permitting employers' association both of Kota and Rajasthan in these cases, we have allowed them to intervene. 43. We have stated the above facts in a nut-shell so that the constitutional validity which would now be considered by this Court can be considered having knowledge of the genesis of controversies and issues, facts which originated with the history of the retrenchment. 44. Now as we have indicted at the very threshold of this judgment, the crucial question relates to the validity of S. 25-N of the Act which reads as under : "25-N Conditions precedent to retrenchment of workmen. 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 : Provided that no such notice shall be necessary if The retrenchment is under an agreement which specifies to a date for termination of service : (b) the workman has been paid, 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 ; and (c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette, and the permission of such Government or authority is obtained under sub-section (2). 2. On receipt of a notice under clause (c) of sub-section (1) of the appropriate Government or authority may, after making such inquiry as such Government or authority thinks fit, grant or refuse, for reasons to be recorded in writing, the permission for the retrenchment to which the notice relates. 3. Where the Government or authority does not communicate the permission or the refusal to grant the permission to the employer within three months of the date of service of the notice under clause (c) of sub-section (1), the Government or authority shall be demed to have granted permission for such retrenchment on the expiration of the said period of three months. 4. 4. Where at the commencement of the Industrial Disputes (Amendment) Act, 1976, the period of notice givers under clause (a) of Section 23-F for the retrenchment of any workman has not expired, the employer shall not retrench the workman but shall within a period of fifteen days from such commencement, apply to the appropriate Government or the authority specified in sub-section (2) for permission for retrenchment. 5. Where an application for permission has been made under sub-section (4) and the appropriate Government or the authority, as the case may be, 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. 6. Where no application for permission under clause (e) of sub-section (i) is made, or where no application for permission under sub- section (4) is made within the period specified there or where the permission for the 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. 7. 7. Where at the commencement of the Industrial Disputes (Amendment) Act, 1976, a dispute relating either solely or in addition to other matters, to the retrenchment of any workman or workmen of an industrial establishment to which this Chapter applies is pending before a conciliation officer or the Central Government or the State Government, as the case may be, and- (a) there is an allegation that such retrenchment is by way of victimisation, or (b) the appropriate Government is of the opinion theat such retrenchment is not in the interest of the maintenance of industrial peace, the appropriate Government if satisfied that it is necessary so to do, may, by order, withdraw such dispute or, as the case may be, such dispute in so far as it relates to such retrenchment and transfer the same to an authority (being an authority specified by the appropriate Government by notification in the Official Gazette) for consideration whether such retrenchment is justified and any order passed by such authority shall be final and binding on the employer and the workman or workmen." 45. We have already narrated the history of this legislation as disclosed by Shri Punamia, but in order to be precise, we may mention it in chronological order. 46. The Act was enacted in the year 1947 prior to the Independence and it received consent on April 4, 1947. In the original Act, then e was no definition of the term, retrenchment' but on October 21, 1953 the amendment was made by which Section 2 (oo) and Chapter V-A were inserted (See Act No. 43 of 1953). Act No. 41 of 1956 was inserted but is was later on substituted by Act No. 18 of 1957 making effective w. e. f 28th November, 1956. This amendment was made to meet the situation created on the decision of the Bombay High Court in Hospital Mazdoor Sabha v. State of Bombay. ( 1957) IL1J 55 - is FIR 473 : 58 Bom. L.R. 769 , and certain earlier cases. These provisions were made to include the cases of compensation to he paid to the employees who were sacked on account of change of the management of an undertaking, because of the judicial verdict about S. 25-F wherein it was held that no retrenchment compensation is to be paid to the workmen whose services were terminated by the employers. 47. These provisions were made to include the cases of compensation to he paid to the employees who were sacked on account of change of the management of an undertaking, because of the judicial verdict about S. 25-F wherein it was held that no retrenchment compensation is to be paid to the workmen whose services were terminated by the employers. 47. In the year 1972, Sections 25-FFA and 30-A were introduced and inserted by Industrial Disputes (Amendment) Act. 1972 Act 32 of 1972) in order to require an employer of an industrial establishments employing more than 50 workers to give 60 days notice before closure. Section 30A is the penal consequence for not giving the notice. 48. It was on January 28, 1976 that a Bill No. XVI of 1976 was introduced in the Rajya Sabha to add Chapter VB (Special provision relating to lay-off. retrenchment and closure to certain establishments). This was introduced to prevent hardship to the employees and to maintain higher tempo of production and productivity by putting some restrictions on the employers on the right to 'lay-off' and 'closure' as per the need, felt by the different State governments. This Bill proposed to introduce inter alia Section 25M (prohibition of lay-off). Section 25N (conditions precedent to retrenchment of workmen) and See 25 (0) (90 days' notice to be given of intention to close down any undertaking). This Bill was ultimately achieved to be introduced by inserting a new Chapter VB in the Act and became as an statute. 49. S. 25-O containing requirement of prior permission in case of closure of an undertaking, came under fire' in the Supreme Court and, a constitutional Bench of the Apex Court of this country in Excel Wear v. Union of India (supra) held that the provisions of Section 25-O and the penal provisions of Section 25R were constitutionally invalid as violative of Act. 19(1) (g) of the Constitution and. Article 31 (c) did not protect and save Section 25-O or section 25-R from challenge. 50. This decision resulted in taking away the requirement of prior permission in cases of 'closure' and the Government after a long deliberation now introduced a Bill in the year 1982 in the Lok Sabha re-enacting S. 25-O of the Act after taking into consideration the observations and defects pointed out by the Apex Court in Excel Wear's decision (supra). 51. This decision resulted in taking away the requirement of prior permission in cases of 'closure' and the Government after a long deliberation now introduced a Bill in the year 1982 in the Lok Sabha re-enacting S. 25-O of the Act after taking into consideration the observations and defects pointed out by the Apex Court in Excel Wear's decision (supra). 51. Two important infirmities pointed out by the Supreme Court related to the absence of .guidelines for granting or refusing permission for closure and appellate forum or forum of review. This Bill was passed by both the Houses of Parliament and is now waiting the notification for its coming into force while the above Bill was being discussed on 27th April, 1983, the Minister for Labour observed in the following words : "Shri Virendra Patil : The Hon'ble Member Mr. Rammurti observed that the Madras High Court had struck down certain provisions of the Industrial Disputes Act. And he was under the impression that neither the State Government, nor the Government of India did anything and we were sleeping over the matter. I checked up the position. The position is that it is true that the Madras High Court has struck down Section 25M and Section 25N of the Industrial Disputes Act. But, according to him, the Government has not preferred an appeal. It is not correct that there is no appeal filed against the judgment. We have filed a special leave petition in the Supreme Court against the decision of the Madras High Court. We also intend amending Section 25 M and Section 25 N on the same lines as the amendment to Section 25-0 incorporated in the Amendment Act, 1982." (emphasis added) 52. Making Excel Wear's decision (supra) as a bed rock and foundation. Mr. Nariman submitted that the decision must squarely apply for sit striking down S. 25-N also. Spearheading the constitutional attack, Shri Nanrnan pointed out that the twin infirmities. which resulted in collapse of Section 25-O of the Act e.g., (I) absence of guidelines (2) absence of remedy by way of appeal, are also the infirmities in S. 25-N and they are in much more strong force because whereas in Excel Wear's decision (supra) there were some guidelines very important one but they are completely missing in S. 25-N. 53. In substance, Shri Nariman averred that, whereas in Excel Wear's decision (supra) there were some, in S. 25.O of the Act, in the present casts. there are none, in S. 25-N of the Act. It was this remarkable similarity and identity which resulted in K.V. Rajendran's decision (supra) of Madras High Court striking down S. 25-N of the Act. argued Shri Nariman. 54. Shri Punamia vehemently opposed this plea of Shri Nariman and, pointed out the following distinction and distinguishing features, due to which Excel Wear's Bull should not be allowed to enter the premises of Ss 25-M and 25-N of the Act for knocking it down. 55. It was pointed out that the reasons are required to be recorded as provided in S. 25-N (2) and this requirement is absent in S. 25-O (2) of the Act. This waters down the requirement of appeal or review. Secondly, it was pointed, out that an inquiry is required to be conducted and, therefore, a quasi judicial authority is required to adjudicate the rights of the parties and both the parties have got a right of hearing in that inquiry, which knocks down the charge of arbitrariness, caprice, unbridled powers in the absence of guidelines. 56. Shri Punamia pointed out that even though no guidelines have been provided in S. 25-N itself, but, ample guidelines are there in the Act and the Objects and Statement of reasons of the Act. Shri Punamia emphasised on the following aims and object clauses of the Act, which, we, in details, would discuss in later part of our decision and, here, we are only extracting a few object clause on which Shri Punamia has placed reliance: "The need for State intervention permeates Act in its broad lines, 'which in a welfare State cannot afford to look askence at industrial unrest and industrial dispute. The Act enables the State to compel the parts to resort to industrial arbitration and for that purpose different forums have been set up for the resolution of such disputes. The Act enables the State to compel the parts to resort to industrial arbitration and for that purpose different forums have been set up for the resolution of such disputes. The Act is intended to be a self-contained one and it seeks to achieve social justice on the basis of collective bargaining, conciliation, arbitration and failing that compulsory adjudication." "The Act is a piece of legislation calculated to ensure social justice to both employers and employees and advance progress of industry by bringing about harmony and cordial relationship between the parties." "In other words, the purpose of this Act is to settle disputes between workers and employers which if not settled, would result in strikes or lock-outs and entail disclocation of work, essential to the life of the community." "The Act, however, does not provide for any set of social and economic principles for adjustment of conflicting interests. Such norms have been evolved and devised by industrial adjudication, keeping in view the social and economic conditions, the needs of the workmen, the requirements of the industry, social justice, relative interests of the parties and common good." 57. Shri Punamia further pointed out that the guidelines are also available in section 25-M of the Act. Shri Punamia submitted that the workmen have been profitted with this protection. for the first time, in the history of industrial legislation of India, while remaining in the job against the earlier situation, where they were required to fight battle hem the level of the conciliation Officer to the summit Court in the country at Delhi, outside the job being on the road. 58. Shri N.L. Jain. the learned Advocate General appearing for the State of Rajasthan, pointed out that apart from the guidelines in the scheme of Act, itself. its preamble, Directive principles of the State policy in the Constitution and the Preamble of the Constitution, the Rules containing the forms in which the information for permission is to be sent to the Government, contemplate and provide guidelines, which are otherwise missing. In other words, Shri Jain pointed out that, if we look into the forth prescribed, is contains various informations about earlier retrenchment, establishment, profits, reasons for retrenchment etc. In other words, Shri Jain pointed out that, if we look into the forth prescribed, is contains various informations about earlier retrenchment, establishment, profits, reasons for retrenchment etc. and it shows that these questions will be considered by the Government, while refusing or granting the prayer for permission and, therefore, they, are real guidelines which though latent in the section, becomes patent by perusing of all these materials. 59. Shri B.P. Gupta, the learned Standing counsel for the Union of India supported the above submission advanced by Shri Jain, the learned Advocate General, and Shri Punamia, the Trade Union leader of the Union of the workers. 60. We would like to deal a little later the second and more important question, whether on account of the provision for holding such inquiry, may be deemed proper, and, the provision for recording of reasons while accepting or rejecting the prayer for permission, Excel Wear's decision (supra) of the Supreme Court can be distinguished and the provisions of S. 25-N of the Act can be saved from being declared ultra-vires of Article 19 (1) (g) of the Constitution. 61. We would also deal a little later the submission of Shri Jain that the retrenchment is not an integral part of closure or retrenchment or removal of workman is none of the integral part of running a business and, therefore, whereas running or doing business or trade may be a fundamental right under Article 19 of the Constitution but, from it, that right would not extend to removal, termination of the workmen or retrenchment as such, and, therefore, the petitioner company cannot resort to Article 19 (1) (g) of the Constitution for testing the reasonableness of the restrictions put by Sec 25-N for requiring permission of the State Government before retrenchment in an establishment of more than 300 persons. 62. Before we enter into broader horizon of the controversy involved and raised at the Bar, in the above three contentions, which if accepted, saves the case of S. 25-N of the Act from Excel Wear's decision Bull's onslaught, we would like to concentrate on the basic question, whether Excel Wear's decision (supra) otherwise applies squarely. 62. Before we enter into broader horizon of the controversy involved and raised at the Bar, in the above three contentions, which if accepted, saves the case of S. 25-N of the Act from Excel Wear's decision Bull's onslaught, we would like to concentrate on the basic question, whether Excel Wear's decision (supra) otherwise applies squarely. In other words, the question which requires consideration first is, whether apart from two or three features pointed out by Shri Punamia Shri Jain and Shri Gupta, distinguishingh Sections 25-N & 25-O of the Act, the provisions are identical and similar. 63. While discussing the above two or three distinguishing points as alleged by the workmen, we would also consider, whether they were there in Excel Wear's decision (supra) in S. 25-0 and the complete absence of guidelines in S. 25-N of the Act makes S. 25-N worst for ascertaining its vires, as argued by Shri Nariman. 64. During taking into consideration the decision of Excel Wear's case (supra), we have also to first take notice of the text of S. 25-0 of the Act which runs as under : "25-O. Procedure for closing down an undertaking.- 1. An employer who intends to close down an undertaking of an industrial establishment to which this Chapter applies shall, in the prescribed manner, apply, for prior permission at least ninety days before the date on which the intended closure is to become effective, to the appropriate Government, stating clearly the reasons for the intended closure of the undertaking and a copy of such application shall also be served simultaneously on the representatives of the workmen in the prescribed manner : provided that nothing in this sub-section shall apply to an undertaking set up for the construction of buildings, bridges, roads, canals, dams or for other construction. 2. 2. Where an application for permission has been made under sub-section (1), the appropriate Government, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen and the persons interested in such closure may, having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the general public and all other 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. 3. where an application has been made under sub-section (I) and the appropriate Government does not communicate the order granting or refusing to grant permission to employer within it period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period, of sixty days. 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. 6. Where no application for permission under sub-section (1) is made within the period specified therein, or where the permission for closure has been refused. the closure of the undertaking shall be deemed to be illegal from the date of closure and the workmen shall be entitled to all the benefits under any law for the time being in force as if the undertaking had not been closed clown. 7. the closure of the undertaking shall be deemed to be illegal from the date of closure and the workmen shall be entitled to all the benefits under any law for the time being in force as if the undertaking had not been closed clown. 7. 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 undertaking or death of the employer or the like it is necessary so to do, by order, direct that the provisions of sub-section (I) shall not apply in relation to such undertaking for such period as may be specified in the order. 8. Where an undertaking is permitted to be closed down under sub- section (2) or where permission for closure is deemed to be granted under sub-section (3), every workman who is employed in that undertaking immediately before the date of application for permission tinder this section, shall be entitled to receive compensation which shall be equivelant to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months." 65. The crux of this provision is, that before effecting closure of any industrial undertaking, the employer should serve on the State Government notice of ninety days for approval mentioning therein the reasons for intended closure and then the Government can direct the employer not to close such undertaking on the following grounds:- (a) Reasons are not adequate and sufficient. (b) Such closure is prejudicial to the public interest. 66. This Section further postulates that if such an order directing employer not to close such undertaking is not sent within a period, from the period of two months from the date of application of closure the permission will be deemed to have been granted, and in any other eventuality the closure would be illegal and workmen shall be entitled to all other benefits in any law for the time being as if no notice has been given to him. 67. It would thus be seen that the prior condition and pre-requisite condition for a closure is service of notice of intended closure before 90 days and, further non-refusal of the Government within 2 months after the receipt of such notice. 67. It would thus be seen that the prior condition and pre-requisite condition for a closure is service of notice of intended closure before 90 days and, further non-refusal of the Government within 2 months after the receipt of such notice. The guidelines given in this clause for refusal of permission were that the reasons were not sufficient or adequate, further even if reasons were sufficient and adequate, if it is necessary to do so in public interest, because the closure is prejudicial to the public interest. 68. Now obviously, there were some guidelines where the Government could apply its mind for grant of permission or its refusal and their Lordships of the Apex Court were of the opinion that these guidelines were no guidelines in the eye of law and it has been left to the caprice and whims of the authority to decide one way or the other. 69. It was also held that there was no right of appeal and absence of that also is fatal. Now coming to S. 25-N of the Act, it is obvious that even the guidelines in the form of adequate and sufficient or, prejudicial to the public interest are absent and, there is complete absence of guidelines. It can, therefore, be safely said that whereas in S. 25-0 of the Act, there were some guidelines, there are none in S. 25-N of the Act so far as the text of the statue S. 25-0 and 25-N of the Act, is concerned. In that view of the matter, there is striking similarity between two provisions and the infirmity of absence of guidelines in more severe in S. 25-N in comparison to S. 25-0 of the Act. 70. Again, in S. 25-N of the Act, there is no provision of appeal or review or second scrutiny by the higher authorities not to talk of any Tribunal or Court. The decision of Excel Wear's case (supra) striking down S. 25-0 of the Act on the ground of absence of appeal, therefore, bears great similarity and application on the basis of that similarity of the provisions of Ss 25-M and 25.0 of the Act. 71. The decision of Excel Wear's case (supra) striking down S. 25-0 of the Act on the ground of absence of appeal, therefore, bears great similarity and application on the basis of that similarity of the provisions of Ss 25-M and 25.0 of the Act. 71. We, therefore, find that, so far as absence of appeal and, absence of guidelines are concerned, S. 25-0 of the Act as well as S. 25-N stands on the same footings and the reasons given for striking down S. 25-0 of the Act applies with equal force to S. 25-N. 72. It is now to be seen, whether, inspite of the provisions being parimateria so far as the absence of appeal and guidelines are concerned, the two provisions, Sections 25-N and 25-0 of the Act, can be distinguished on other grounds. 73. So far as the ground of inferring the guidelines from the scheme of the Act, Preamble and aims and objects of the Act or its amendment, the Directive principles of the Constitution of India or its preamble and the various protections provided by the Constitution to the Labour and workmen are concerned, the first question, which we have asked, ourselves, is, whether all of them were not available, present and speaking in Excel Wear's Case. S 25-0 of the Act was considered for its restriction under Article 19( l)(g) of the Constitution due to absence of guidelines. It would be wholly improbable, if not preposterous, for any one to think that, the Constitutional bench of the Apex ,Judges of the Apex Court was unaware of the established law that in a few cases guidelines can be inferred from the scheme of the Act or its preamable or both, taken together. 74. It would be simplifying too much, if we are persuaded to believe that, the Apex Court did not notice it or escaped its notice. It will be presumed that they were alive to it and consciously they could not spell out guidelines from such broad desires, like the preamble of the Constitution or the Directive principles or, the scheme of the Act. In the very nature of things, the question in every case is, whether the guidelines can be held to he proper for exercising discretion, which otherwise is naked, arbitary caprice, unbridled. Where are the bridles to be found. In the very nature of things, the question in every case is, whether the guidelines can be held to he proper for exercising discretion, which otherwise is naked, arbitary caprice, unbridled. Where are the bridles to be found. If the use of the words adequate and sufficient' for adjudicating just and fairness of the reasons for closure has been held to be of no consequence, how can the absence of them improve the position. 75. We are, therefore, required to consider now, whether in such a situation. inspire of Excel Wears case holding otherwise, we can hold that the provisions of' Act, its preamble. aims and object, the Directive principles of the Constitution and the preamble of the Constitution provide guidelines to the officers or to the Government to decide, whether permission is to be granted for retrenchment on the basis of the reasons given by the Management or not. 76. Shri Nariman, in this connection, drew our attention and, pointed out that in such a situation, when in Excel Wear's decision (supra) the Apex Judges of the Apex Court refused to treat two exigencies for refusal as proper guidelines, this Court cannot against the expressed decision of the Apex Court, hold that even though there were no guidelines, they are to be inferred from the Act and its preamble where they are too obscure. 77. The second reason for absence of appeal given by the Supreme Court in Excel Wear's decision (supra) was sought to be differentiated by the respondent- Union and the Union of India and the State of Rajasthan's counsel by pointing out that S. 25-N of the Act contemplates giving of reasons by the Government and, that too, after an inquiry and therefore, the absence of provisions of appeal cannot invalidate tine provisions and make it reasonable restriction. 78. In this connection, Shri Nariman pointed out that it is true that there is a provision for giving reasons but, as held by the Supreme Court in Dwarka Prasad v. State of Uttar Pradesh ( AIR 1954 SC 224 ) , the obligation to state reasons without a statutory remedy for correcting an order of that authority either by way of an appeal or otherwise rendered this safeguard ineffective. 79. 79. Shri Nariman pointed out some observations made in Dwarka Parsad's matter (supra) and argued that the verdict of Apex Court in Dwarka Prasad's case is again a decision of constitutional bench and it is binding on this Court also. It was further averred that the provision was pari-materia in that case of Dwarka Prasad so far as giving of reasons are concerned and, even then the Supreme Court did not treat it enough. 80. Shri Nariman also contended that holding of inquiry as may be deemed proper, the provision in S. 25-N of the Act cannot distinguish because such an inquiry of summary nature is inherent even if it is not prescribed. Shri Nariman further argued that after making such an inquiry as the Government or the authority thinks fit" would not change the position of S. 25-N of the Act. Under s 25-0 (2) of the Act, the authority refusing or granting permission is required to be satisfied and this satisfaction imparts a pre-decisional hearing. Shri Nariman placed reliance upon the decision of the Supreme Court in Siemens Engg. & Mfg. Co. Ltd. v. Union of India ( AIR 1976 SC 1785 ) (See para 6), wherein the duties of the authorities have been stated clearly and, particularly, Shri Nariman has relied upon the following observations made per Bhagwati,J., "If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in sonic kinds of cases, with the proliforation of Administrative Law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process." (emphasis supplied) 81. On the above bedrock, Shri Nariman averred that no distinction can be drawn between, S. 25-O and S. 25 N of the Act. because, in S. 25-N also the inquiry is to be of such nature which the authority thinks fit and, it has not been contemplated that it may be judicial or quasi-judicial adjudication after a detailed hearing and taking of evidence. 82. because, in S. 25-N also the inquiry is to be of such nature which the authority thinks fit and, it has not been contemplated that it may be judicial or quasi-judicial adjudication after a detailed hearing and taking of evidence. 82. It was also pointed out that in Organe Chemical Industries v. Union of India ( AIR 1979 SC 1803 ) (See pain 8). both, the Apex Judges, Krishna Iyer and A. 1". Sen. JJ , of the Apex Court, held that the stating of reason, of the holding of the inquiry were inherent in administrative bodies and 'Tribunals. It was contended that the verdicts in Siemen and Organo Chemicals Industries cases (supra) by the Supreme Court make it patently clear, that the satisfaction which the authority is required to record for refusing or granting permission under S. 25-O of the Act will have to proceed by art inquiry and, that will have to be expressed in the reasons to be recorded, even though, both are expressly absent. Shri Nariman thus argued that S. 25-N of the Act when it speaks of inquiry and giving of reasons oily makes it patent, and what was latent in S 25-O of Act but, there is no difference, which can differentiate the two. Shri Nariman further argued in this respect that what is the value of reasons to be recorded, when there is no provision of review, Shri Nariman posed a question, how the superior court would judge the validity of those reasons in the absence of guidelines because all that this Court can do is to find out reasons for any nexus with the guidelines. When there is complete absence of guidelines, the reasons cannot be tested on any touch stone. 83. On the above bed-rock, Shri Nariman submitted that Excel Wear's case (supra), cannot he distinguished of its application to S. 25-N of the Act and, merely because these two requirements are in s 25-N and not in S. 25-O of the Act, that cannot distinguish the two provisions for the purposes of its reasonableness of restriction of prior permission from the State Government on the touch stone of Article 19 (1) (g) (2) of the Constitution of India. 84. Shri Nariman then submitted that in Dwarka Prasad's decision (supra). 84. Shri Nariman then submitted that in Dwarka Prasad's decision (supra). it was observed that the safeguard of according of reasons' is hardly effective: for there is no higher authority prescribed in the order who would examine the propriety of these reasons and reverse or review the decision of the sub- ordinate authority. The reasons, therefore, which are required to be recorded are only for personal or subjective satisfaction of the licensing authority and not for furnishing any remedy to the aggrieved person. 85. Yet another facet of the legal debate is that when such reasons are given in S. 25-N for refusing the permission or granting the permission, the High Court can test them in judicial review under Article 226 of the Constitution. 86. Confronted with the above, Shri Nariman pointed out that in a series of decisions of the Supreme Court, which we would mention a little later in this decision's later part, it has been held that the powers of judicial review under Article 226 are of discretionary nature and only jurisdictional error can be rectified. 87. Shri Nariman, therefore, submitted that mere mention that reasons will be recorded and there would he an inquiry of a nature which the authority may think proper, would not oust application of the principles and we should apply the decision of Excel Wear's cask: (supra) to the provisions of S. 25-N and this is what precisely was done by Madras High Court in K. v. Rajendran and K. Gurumurthy's cases (supra. the Madras view). 88. Now we have to examine the difference between the view taken by the Madras High Court and Andra Pradash High Court, in this respect in order to find out, whether application and non-application of Excel Wear's decision (sura) as held in the Madras view is correct or, the correct view has been taken by the Andhra Pradesh High Court. 88. Now we have to examine the difference between the view taken by the Madras High Court and Andra Pradash High Court, in this respect in order to find out, whether application and non-application of Excel Wear's decision (sura) as held in the Madras view is correct or, the correct view has been taken by the Andhra Pradesh High Court. This has become necessary because even though Excel Wear's decision (supra) may be applicable prima facie, to Section 25-N of the Act but, if we can carve out exception to the application by addition of either these two provisions of giving reasons to be recorded and, inquiry, which have been relied upon by the Andhra Pradesh High Court in General Industrial Society v. Commissioner of Labour (supra), the Andhra view) or, the can hold that the principles laid down by the Apex Court in Excel Wear's decision (supra)can apply only to closure' and not to 'retrenchment' or, 'lay-off' as held by the Andhra Pradesh High Court in the above referred case the Andhra view), then the provisions of Section 25-N of the Act cannot be struck down as ultra-vires. 89. Let us now examine -ratio decendi" of decision of the Apex Court in Excel Wear and others v. Union of India and others (2), more closely and in details. 90. The constitutional bench first noticed the decision in M/s Natising Mf. Co. Ltd and another v. Union of India and others (1960) 3 S C.R. 528 , wherein the constitutional validity of S. 25FFF(l) of the Industrial Disputes Act (hereinafter referred to as the Act') came under heavy fire'. The observations made by Shah J., in Natisingh's case (supra) were extracted in the following manner, "In the interest of the general public, the law may impose restrictions on the freedom of the citizens to start, carry on or close their undertakings." The deduction of the constitutional bench was that this clearly indicated and the whole ratio of the case is based upon this footing, that the right to carry on any business includes a right to start, carry on or close down any undertaking. It then noticed that by S. 25 FFF(1), termination of employment on closure of the undertaking without payment of compensation and without either serving notice or paying wages in lieu of notice, is not prohibited and, those are not conditions proceedings to closure. It then noticed that by S. 25 FFF(1), termination of employment on closure of the undertaking without payment of compensation and without either serving notice or paying wages in lieu of notice, is not prohibited and, those are not conditions proceedings to closure. On account of their observations of Shah J.. their Lordships of the Apex Court in Excel Wear's case (supra) held, that this is one of the main reasons given in the judgment to repeal the attack on the constitutional validity of the provision. But, on this, it cannot be deduced that, if the payments are made as conditions precedent then, the provisions would be bad. 91. The constitutional bench extracted the principles laid down it Natisingh's case (supra) at page 535 in the following manner,- "Whether an impugned provision imposing a fetter on the exercise the fundamental right guaranteed by Article 19(1) (g) mounts to a reasonable restriction imposed in the interest of the general public must be adjudge( not in the background of any theoretical standards or predeterminate patterns, but in the light the nature and incidents of the right the interest of the general public sought to be secured by imposing the restriction and the reasonableness of the quality and extent of the fetter upon the right." Again, the following observations made in Natisingh's case (supra), with was the agreement was expressed by the constitutional bench in Excel Wear's decision (supra) were noticed:- "Loss of service due to closure stands on the same footing as loss of service due to retrenchment, for, in both cases, the employee is thrown out of employment suddenly and for no fault of his and the hardships which he has to face are, whether unemployment is the result of retrenchment or closure of business, the same." Their Lordships then noticed that the different provisions of Sections 25M and 25N contemplate different provisions of 'Lay-off' and 'retrenchment'. After analysing and scrutinising the provisions of Ss 25NI and 25N, in para 16, their Lordships (lien read S. 25-0 of the Act in para 17. After analysing and scrutinising the provisions of Ss 25NI and 25N, in para 16, their Lordships (lien read S. 25-0 of the Act in para 17. The constitution bench then noticed, as to what can be the extreme situation of restrictions and, thereafter observed that as held in Cooverjee B. Bherucha v. The Excise Commissioner and the Chief Commissioner, Ajmer, & others (1954) 3 S.C.R. 873 , Narendra Kumar and others v. The Union of India and others (1960) 2 S.C.R 375 total prohibition of business is possible by putting reasonable restrictions within the meaning of Article 19(6) on the right to carry on the business. But, the greater the restriction, the more the need for strict scrutiny by the Court. 92. Their Lordships then held that the right to close is a right appurtenant to the ownership of the property or right to carry on business. It was also observed that, "it is wrong to say that the employer has no right to close down a business once he starts it. If he has such a right, as obviously he has, it cannot but be a fundamental right embedded in the right to carry on any business guaranteed tinder Article 19(1) (g) of the Constitution." 93. After holding, that the right to close a business is an integral part of the fundamental right to carry on a business; their Lordships of the Apex Court examined the nature of right and regulations, and restrictions which are permissible in the interest of the general public. Their Lordships posed some questions and observed ultimately as under : "But so long as the private ownership of an industry is recognised and governs an overwhelmingly large proportion of our economic structure, is it possible to say that principles of socialists and social justice can be pushed to such an extreme so as to ignore completely or to a very large extent the interests of another section of the public, namely, the private owners of the undertakings'? Most of the industries are owned by limited companies in which a number of shareholders, both big and small, holds the shares. There are creditors and depositors and various other persons connected with or having dealings with the undertakings Does socialiser go to the extent of not looking to the interests of all such persons ? Most of the industries are owned by limited companies in which a number of shareholders, both big and small, holds the shares. There are creditors and depositors and various other persons connected with or having dealings with the undertakings Does socialiser go to the extent of not looking to the interests of all such persons ? In it State owned undertaking the Government or the Government company is the owner. If they are compelled to close down they. probably, may protect the labour by several other methods at their command, even, sometimes at the cost of the public exchequor. It may not be always advisable to do so but that is a different question. But in a private sector obviously the two matters involved in running it are not on the same footing. One part is the management of the business done by the owner of their representatives and the other is running the business for return to the owner not only for the purpose of meeting his livelihood or expenses but also for the purpose of the growth of the national economy by formation of more and more capital. Does it stand to reason that by such rigorous provisions like those contained in the impugned sections all these interests should be completely or substantially ignored ? The questions posed are suggestive of the answers." 94. Their Lordships then noticed that, in two of the cases e.g., Excel Wear and Acme Manufacturing Co. Ltd., the reason given for refusal was that the intended closure was prejudicial to public interest. Their Lordships then posed the questions,- "Is it possible to compel the employer to manage the undertaking even when they do not find itself and practicable to manage the affairs ? "Can they be asked to go on facing tremendous difficulties of management even at the risk of their person and property ?" ''Can they be compelled to go oil incurring losses year after year ?" After posing the above questions, their Lordships observed in the following terms:- "As we have indicated earlier in S. 25 FFF retrenchment compensation was allowed in cases of closure and if closure was occasioned on account of unavoidable circumstances beyond the control of the employer a ceiling was put on the amount of compensation under the proviso. The explanation pustulates the financial difficulties including financial lossess or accumulation of undisputed stocks, etc., as the closing of undertaking on account of unavoidable circumstances beyond the control of* the employer but by a deeming provision only the ceiling in the matter of compensations not made applicable to the closure of an undertaking for such reasons. In 1972 by insertion of S. 25FFA in Chapter VA of the Act, an employer was enjoined to give notice to the Government of an intended closure. But gradually, the net was cast too wide and the freedom of the employer tightened to such an extent by introduction of the impugned provisions that it has come to a breaking point from the point of view of the employers. As in the instant cases, so in many others, it situation may arise both from the point of view of law and order and the financial aspect that the employer finds it impossible to carry on the business any longer. He must not be allowed to be whimsical or capricious in the matter ignoring the interest of the labour altogether. But that can probably be remedied by awarding different slabs of compensation in different situations It is not quite correct to say that because compensation. is not a substituted for the remedy of prevention of unemployment. the latter remedy must be the only one. If it were so. then in no case closure can be or should be allowed. In the third case, namely, that of Apar Private Ltd. the Government has given two reasons, both of them bring too vague to give any exact idea in support of the refusal of permission to close down It says that the reasons are not adequate. and sufficient (although they may be correct) and that the intended closure is pre- judicial to the public interest. The latter reason will be universal in all cases of closure. The former demonstrates to what extent the order can be unreasonable If the reasons given by the petitioner in great detail are correct, as the impugned order suggests they are it is preposterous to say that they are not adequate and sufficient for it closure. Such an unreasonable order as possible to be passed because of the unreasonableness of the law. Whimsically and capriciously the authority can refuse permission to close down. Such an unreasonable order as possible to be passed because of the unreasonableness of the law. Whimsically and capriciously the authority can refuse permission to close down. Cases may be there and those in hand seem to be of that nature, where it' the employer acts according to the direction given in the order he will have no other alternative but to face ruination in the matter of personal safety and on the economic Front. If he violates it, apart from the civil liability which will be of a recurring nature, he incurs the penal liability not only under S. 25R of the Act but under many other statutes". (Para 25) 95. In para 27 of Excel Wear's decision, the Apex Court held that the order passed by the authority is not subject to any scrutiny by any his, her authority or Tribunal either in appeal or revision, nor it can be reviewed. It was then held that the law as enacted suffers from any vice of excessive and unreasonable restriction. It testes the 'reasonableness' on the touchstone of the principles laid down in State of Bihar v. K.K. Misra and others (1978) 3 S.C.R. 1981 , Dr. Khara v. State of Delhi (1950) S. C. R. 519 : AIR 1950 SC 211 , and V. G. Row's cases (1952)S. C. R. 597 : AIR 1952 SC 196 , were noticed. 96. Their Lordships then observed as under "It is no doubt true that Chapter V B deals with certain comparatively bigger undertakings and of a few types only. But with all this defference it has not made the law reasonable. It may be a reasonable classification for saving the law from violation of Article 14 but certainly it does not make the restriction reasonable within the meaning of Article 19 (6). Similarly the interest of ancillary industry cannot be protected by compelling an employer to carry on the industry although he is incapacitated to do so. All the comprehensive and detailed information given in the application forms are of no avail to the employer if the law permits the authority to pass a cryptic, capricious, whimsical and one-sided order." (Para 32) 97. All the comprehensive and detailed information given in the application forms are of no avail to the employer if the law permits the authority to pass a cryptic, capricious, whimsical and one-sided order." (Para 32) 97. It may be noted there that their lordships were of the opinion that, even though the application form, requires a comprehensive and detailed information but, it would be of no avail to the employer if the law permits the authority to pass a cryptic, capricious., whimsical and one sided order.'T his deduction of their Lordships in Excel wear's decision (supra) is very relevant for considering the arguments advanced by Shri N. L.,Jain, the learned Advocate General that, the forms prescribed for moving an application for permission to retrenchment requires a plethora of data to be given and that provides guidelines. It is not in dispute that such forms are also provided for the closure and. their lordships have noticed all this in Para 32 and rejected such an argument. Ultimately, their Lordships held in the result as under : "In the result, the petitions are allowed and it is declared that S. 25-O of the Act as a whole and S. 25R insofar as it relates to the awarding of punishment for infraction of the provisions of S. 25-O are constitutionally bad and invalid for violation of Article 19 (1) (g) of the Constitution. Consequently, the impugned orders passed under sub-s (2) of S. 25.0 in all tine cases are held to be void and the respondents are restrained front enforcing them. We must, however, make it clear that since the orders fall on the constitutional invalidity of the law under which they have been made, we have not thought it fit to express any view in regard to their merits otherwise. We make no order as to costs in any of the petition." (Para 42) 98. It would thus be noticed that in Excel Wear's decision (supra). We make no order as to costs in any of the petition." (Para 42) 98. It would thus be noticed that in Excel Wear's decision (supra). it has been held that Section 25-O of the Act cannot withstand the touchstone of 'reasonableness' within the meaning of Article 19 (6) of the Constitution and primarily important reasons which weighed with their Lordships was that the guidelines prescribed in the Act cannot be treated as guidelines in the law and in the absence of guidelines, it has been left to the caprice and whim of the authority to decide one way or the other whether, the permission should be granted or not. In substance, the grounds numbers 4 and 8 as mentioned in para 22 in the form of submissions of the petitioners were accepted in Excel Wear's decision. 99. We would come to little later, whether it is possible for us to steer clear through the ratio decidendi of this judgment of the Apex Court in Excel Wear's case (supra) in applying it to section 25N of the Act but, before that we may notice that, Madras High Court in two subsequent decisions. e. g. in K.V. Rajendran v. Dy. Commissioner of Labour Madural and others relating, the validity of S. 25N. K. Gurumurthy v. Simpson and Co , relating to S. 25M, have applied the principles and ratio decidendi of the above decision of Excel Wear's case(supra) of the Supreme Court for striking down the two provisions as unconstitutional being violative of Article 19 (1) (g) of the Constitution. 100. In K. v. Rajendran's decision (supra), Division Bench of the Madras High Court was approached by Sri Ganapathy Mills Co Ltd., Tirunelvels with the prayer that writ of mandamus be issued against the State to not to take any action under Section 25-O for violation of S. 25N of the Act and the two provisions may be declared unconstitutional. 101. The Division Bench of Madras High Court first traced down the law relating to the retrenchment in Para 8 and, thereafter, extracted the submissions of the petitioner-company in para 9. 101. The Division Bench of Madras High Court first traced down the law relating to the retrenchment in Para 8 and, thereafter, extracted the submissions of the petitioner-company in para 9. The submissions which ultimately found favour was first extracted in pars 9 in the following manner, - "In view of the then existing law it is said there was no necessity or justification for imposing stringent restrictions on the power of the employ- er to retrench his workmen even for bona fide causes by enacting Ss 25N and 25R and, therefore, these provisions are onerous and unreasonable. According to the petitioner the restrictions imposed by S 25N are unreasonable and as such violative of Articles 19 (I) (g) and 14 of the Constitution because (1) it confers power to give permission for retrenvchment on an executive authority instead of a judicial Tribunal and even judicial or quasi judicial Tribunals like the Labour Courts and the Industrial Tribunals cannot go into the propriety of the policy of retrenchment adopted or followed by the employer as held by judicial decisions hut the executive authority has been given the power under S 25N to grant or withhold permission to retrench in its discretion. This virtually take away the employer's right to retrench its workmen for bonafide reasons. The constitution of an executive authority to control the discretion of the employer to retrench his workmen for bona fide causes is virtually, an unjustified interference with the employer's right to carry on his business. While under the earlier law even quasi-judicial Tribunals like the Labour Courts and Industrial Tribunals go into the wisdom of the employer in retrenching its workmen for bonafide causes. S. 25N gives an unguided and arbitrary power to the executive authority to sit in judgment over the employer's decision and such an interference is unreasonable. (2) Against the decision of the executive authority refusing permission there is no right of appeal provided and, therefore, the employer is without any remedy to challenge even an arbitrary decision of the executive authority withholding the permission even in bonafide cases. (3) If permission is given, workers can go by a way of an industrial dispute questioning the retrenchment. But if permission is refused. no remedy is available to the employer who is virtually the other patty to the dispute. (3) If permission is given, workers can go by a way of an industrial dispute questioning the retrenchment. But if permission is refused. no remedy is available to the employer who is virtually the other patty to the dispute. (4) No procedure for the proper working of S. 25N has been provided either in the Act of in the rules. (5) Section 25N itself does not give any guidelines for the exercise of the power thereunder by the executive authority." 102. Their Lordships of Madras High Court compared the provisions of Sections 25-O and 25N in para 10 and, thereafter, took notice of the submissions of the petitioner's counsel that the decision of the Supreme Court in Excel Wear's case (supra) squarely applies because since there are no guidelines and no appeal or revision provided, even if the same reasons are giving of no significance, because there is no machinery for rectifying the whimsical and fanciful orders. The precise observations made are in the following terms:- "It is said that even in S. 25N it has been left to the caprice and whirs of the authority to decide one way or the other in the matter of grant of permission to retrench, and the guidelines have, been given, that though S. 25N (2) requires reasons to be given unlike S. 25-O so long as there are no guidelines the reasons for refusal may be whimsical and fanciful but such orders cannot be corrected either by way of an appeal or revision. According to the learned counsel for the petitioner, the only difference between Sections 25N and 23 0 is that S. 25N compels the authority to give reasons and S. 25-0 does not make the recording of reasons a statutory necessity, and the mere provision in S. 25N for giving reasons for refusal without providing the guidelines anti without setting up a machinery for rectifying that the whimsical and fanciful order cannot make the section reasonable if it is otherwise tin-reasonable." (Para 11) 103. The Division Bench of the Madras High Court then dealt with the arguments relating to the guidelines for applying for permission as was argued by Shri Jain here, in the instant case also and, then rejected it observing as under : "The learned counsel for the respondent submits that a bare possibility that powers may be misused or abused cannot per se make the power bad and the power having been to the Government and not to any petty official, the abuse of power cannot be easily assumed. The power under S 25N (2) can be exercised not only by the appropriate Government but also by a subordinate authority aurhorised by that Government. The power to grant permission may be exercised by other authorities as well. It is not, therefore, possible, to adopt the above submission as tenable. It has been held in M/s Dwarka Prasdad Laxmi Narain v. The State of Uttar Pradesh and 2 others (1954) S.C. R.P. 803 , that an absolute power to grant or reject a licence without guidelines as unreasonable and as such amenable to constitutional attack. Here in addition to the absence of guidelines any other passed is not subject to scrutiny by higher authority. We are therefore, of the view that the principle laid down by the Supreme Court in the above case while dealing with the validity of Sections 25-O and 25R will apply here as well." 104. It was then brought to the notice of the division bench of the Madras High Court that the Andhra Pradesh High Court in v. P. Nos. 3086, 6060 and 6161 of 1978 has interpreted the decision of the Apex Court in Excel Wear's case (supra) and held that S. 25 N is not in parimateria with S. 25-O which was the subject matter before the Supreme Court, that there are two points of difference between the two Sections 25-O and 25M as S 25M requires reasons to be recorded in writing, and it provides that permission shall be deemed to have been granted on the expiry of the period of two months and that the two points of difference are substantial and, therefore, the decision of the Supreme Court cannot be invoked to invalidate S. 25M. 105. 105. Their Lordships of the Madras High Court expressed disagreement with the view taken by the Andhra Pradesh High Court and gave the reasons, that: (a) a mere provision requiring reasons to be given cannot be taken to be a sufficient safeguard against arbitrary refusal unless guidelines are set out. Even in a case where the employer makes out a good case for retrenchment, it is possible for the appropriate authority to refuse to grant permission by giving reasons to some extent. There is no provision in the Act to question such whimsical orders by filing appeals or revisions. Therefore, the possibility of permission being with held unreasonable cannot be ruled out, (b) the provision for a deemed permission on the expiry of the two months is not also a sufficient safeguard against arbitrary refusal to give permission. (c) the requirement as to the recording of reasons for the order is not a sufficient safeguard as it is hardly effective for there is no higher authority prescribed in the section who could examine the property or the reasons given and revise or review the decision of the authority and the reasons to be recorded are only for its personal or subjective satisfaction and not for furnishing any remedy to the aggrieved persons, as held by the Supreme Court in M/s Dwarka Pd. v. State of U.P. (9) : (d) the two main and substantial reasons given by the Supreme Court were that no guidelines were available from the statute and, that there is no provisions to set right an arbitrary exercise of power. These defects are present even in Sections 25N as well as in S. 25M, even in a case where the employer had made out a case for a valid lay-off as provided in S. 2 (kkk) the authority may refuse the permission and there is no way of challenging that refusal under the Act, (f) Before the introduction of Chapter VB even the judicial Tribunals cannot question the right of management to retrench for bonafides causes. Now under S. 25, an executive authority has been given the power to question the right of the employer to retrench even in bona fide cases and the power is quite unguided. Now under S. 25, an executive authority has been given the power to question the right of the employer to retrench even in bona fide cases and the power is quite unguided. Ultimately after recording the above reasons, the Division Bench of the Madras High Court in K. v. Rajendran's case (supra), held that the reasons given by the Supt( me Court for invalidating S. 25-O and S. 25R will also apply and S. 25N and S. 25-Q are to be taken to be in valid for violation of Article 19 (1) (g) of the Constitution. 106. The above decision wag delivered by Ramanujam and Sethuraman JJ., of Madras High Court on 23th March, 1980 and this was again reiterated by another bench consisting of Ramanujam and Sengottuvelan .JJ., in K. Gurumurthy v. Simpson & Co. (supra) on 9th April, 1981, has declared S 25M of the Act unconstitutional. Here again, the decision of the Apex Court in Excel Wear's case (supra) was held to apply and the Andhra view in respect of the validity of S. 25M of the Act, taken in General Industrial Society v. Commissioner of Labour (5) was dissented too. 107. Section 25 M of the Act relates to 'lay-off' and it requires that an employer should obtain prior permission of such authority as may be specified by the appropriate Government for laying off the workmen before the workmen are laid off. Their Lordship; observed that the requirement of recording reason in the order is not sufficient safeguard as held in M/s Dwarka Prasad v. State of U.P. (supra) and, therefore, no distinction can be drawn in respect of the provisions requiring prior permission for 'lay-off' and ''closure". 108. Here also, the two distinctive features were convassed by the State to uphold the validity of S. 25 N and they were as under : (i) the authority to whom the application for pet mission is made is to record the reasons in writing either for the grant or for refusal of the permission and, (ii) if the application is not disposed of within two months the permission should be deemed to have been granted. 109. 109. Repealing the submission that these two distinctive features are intended to avoid the application of Excel Wear's decision the Apex Court, their Lordships held as under : "It cannot, therefore, be taken that a mere provision requiring reasons to be recorded in writing is a sufficient safeguard against arbitrary refusal, unless there are guidelines from which it is possible to find out whether the reasons given for the refusal are proper and germane, and unless a right of appeal is given to a higher authority against the orders passed by the authority concerned." "Similarly, the deeming provision in S. 25M (4) is not also a sufficient safeguard against arbitrary exercise of power to grant or refuse permission . ........ The deeming provision in S. 25 M (4) cannot be taken to govern the mode or manner of exercise of the power to grant permission." "Thus the two main defects pointed out by Supreme Court Excel Wear v. Union of India (supra) i. e , (I) No guidelines are available from the statute and (2) that there is no provision for scrutiny of the order passed by the authority by any higher authority or Tribunal in appeal or in revision, are present even in S 25 M." 110. In both the above decisions, e. g., K. V. Rajendran & K. Guru murthy's cases (supra) of the Madras High Court, their Lordships even refused to certify that the cases involved substantial question of law having general importance which need to be decided by the Supreme Court on the ground that, the matter was too obvious and. all that was being done was to follow the authoritative pronouncement of the Apex Court in Excel Wear's case (Supra). 111. We would now like to notice the Andhra view which undoubtedly is different from the Madra, view. In General Industrial Society v. Commissioner of Labour (supra), the validity of S. 25M of the Act was challenged on the ground that it infringes the fundamental rights guaranteed under Article 19(1) (g) and Article 14 of the Constitution of India. S. 25 M of the Act relates to 'lay' on and according to S. 25 M the previous permission of the State authority w.ts sine question for lay-off. 112. S. 25 M of the Act relates to 'lay' on and according to S. 25 M the previous permission of the State authority w.ts sine question for lay-off. 112. Their Lordships of Andhra Pradesh High Court in the said case first held that, right to lay-oft is a fundamental right and Art 19 (1) (g) of the Constitution is applicable. It was held that, right to lay-off' is an integral part of the right to carry on business because such a right to lay-off means right. to refuse employment to any person. While doing so, the dictum of law laid down Excel Wear's decision (supra) that right to close down a business is an integral part of the right to carry on business, was referred and relied upon. 113. Their Lordships then considered, whether S. 25-M imposes reasonable restrictions on the right of the petitioners to carry on their business in the interest of the general public. The court first has prefaced its decision with (certain well-established principles mentioned below in mind while deciding the reasonableness of the statute; (i) The test of reasonableness has to be viewed in the context in which the impugned legislation was passed; (ii) In judging the validity of a law, the Court has to bear in mind the Social interest which the law seeks to promote; (iii) The legislature is in the best position to understand and appreciate the needs of the people and to bring about social reform:, (iv) The Courts will interfere only when the statute is clearly violative of any fundamental right guaranteed under Part III of the Constitution or beyond the competence of the legislature or such other grounds; and (v) The Courts therefore presume that the legislature correctly understands and appreciates the needs of the people and have therefore recognised that there is always a presumption of constitutionality and the onus lies on the party which attacks the legislation to prove its invalidity. 114. The Court then noticed that since 'lay-off' of the workmen would result in disclocation of production and unemployment to a large number of workmen, a prior or previous permission as provided in S. 25M of the Act should be obtained before laying off workmen. 114. The Court then noticed that since 'lay-off' of the workmen would result in disclocation of production and unemployment to a large number of workmen, a prior or previous permission as provided in S. 25M of the Act should be obtained before laying off workmen. It was also noticed that the provisions regarding requiring the authority to record his reasons in writing for laying off workmen is a sufficient safeguard against the arbitrary or capricious exercise of the power either to grant or refuse permission. It has further been noticed that a time limit has been prescribed and, if no decision is communicated within the prescribed time, i. e.. two months, the application moved under S. 25 M should be deemed to have been granted. In this view of the matter, the Court held that, the inconvenience or loss caused to the employer during the prescribed period of two months cannot be said to be out of proportion to the remedy sought to be achieved by the impugned provisions. 115. Their Lordships of the Andhra Pradesh High Court then referred to the decision of the Apex Court in Hathisingh Mlg. Co. v. Union of India (supra) wherein it was observed that the difficulty of time employer cannot be taken as a criterion in considering whether the restrictions imposed are in the interests of the general public. The court had further referred to the decision of Excel Wear's case (supra) and observed that Section 25-O is not part ntateria with S. 25M of the Act and the main distinction was that in S. 25M(3) the authority while granting or refusing permission to the employer to lay-off was required to record reasons in writing and in section 25M(4) it was granted on the expiry of the period of two months. 116. In respect of the guidelines, the Court was of the view that as S. 2 (kkk) of the Act, itself, contains provisions as to when there can be a valid lay-off, any other guidelines are not necessary. Relying upon the decision in C. Lingam v. Govt. of India (AIR 1971 SC 47.1 : (1971) 2-S. C. J. 497) , their Lordships of the Andhra Pradesh High Court observed that when the power has to be exercised by one of the highest officers, the fact that no appeal has been provided for is a matter of no moment. 117. of India (AIR 1971 SC 47.1 : (1971) 2-S. C. J. 497) , their Lordships of the Andhra Pradesh High Court observed that when the power has to be exercised by one of the highest officers, the fact that no appeal has been provided for is a matter of no moment. 117. On the above premises, it wag further held that two distinctive features in respect of S. 25M of the Act where the definition under S. 25 (kkk)itself provides the guidelines and, the requirement regarding recording of the reasons in writing being insisted upon, make the provisions contained in S. 25M different from S. 25-0 of the Act and the restrictions are reasonable. 118. The decks are now clear for considering, whether the Andhra view is to be preferred to Madras view and, Whether the Madras view interpreted Excel Wear's decision (supra). its application, to Section 25N of the Act lays down correct law or, we should show our respectful disagreement with it. 119. While considering this important and crucial aspect of the case, we have to conscious of the fact that S. 25M relates to lay-off'. The word, 'lay-off' has been defined in S. 2 (kkk) which defines it as under : "lay-off' (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw material or the accumulation of stocks or the breakdown of machinery or natural calamity or for any other connected reason to give employment to a workmen whose name is borne on the muster-rolls of his industrial establishment and who has not been retrenched". 120. It is obvious from the above definition that, inability or failure of an employer can be on account of shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery and similar other reasons. "This precisely shows that, 'lay-off' is not absolute right of the management or the employer and it can only be availed of when there are certain unavoidable reasons on account of which the employer cannot temporarily continue his functioning of the factory or industry. It further shows that the problem should be of very casual nature for a short period only so that the workman can be called to work as soon as the problem is over. It further shows that the problem should be of very casual nature for a short period only so that the workman can be called to work as soon as the problem is over. The reasons given for 'lay-off' in S. 2 (kkk) are not exhaustive but they certainly point out that on account of unavoidable reasons on which the management of the factory of industry or' the owners of the management factory have got no control and on account of which they become helpless only, they can lay off workmen. 121. The above definition of 'lay-off' has been used as the bedrock and the principal reason for taking the view that the decision in Excel Wear's case (Supra) of Supreme Court would not apply. Obviously, the guidelines when to allow lay-off and when not to allow lay-off can be rightly inferred and deduced from the definition of the word, 'lay-off', itself. 122. To illustrate' suppose there is a power failure, on account of which the industry cannot function and work smoothly or, there is a break down of machinery, then the State functionaries are bound to allow lay-off as per the definition which, in terms, defines lay-off in such circumstances as inability of an employer to give employment to workmen. In such a situation, it can certainly be said that the guidelines having been provided in the definition of lay-off, itself, it was not necessary for the legislature to lay down the same in S. 25M of the Act. 123. Of course, the Andhra view further distinguishes the application of decision of Excle Wear's case (supra) of Supreme Court on the ground of requirement in S. 25 for automatic permission on the expiry of' the perscribed time of two months, if the authority to whom the application for permission of lay off is made, does not communicate the decision either of refusal or grant of permission after recording of reasons in writing. But, in our opinion, those arc the additional reasons. 124. In any case, now we are to consider, whether the distinctive features pointed out by Andhra view can hold the field in S. 25N of the Act. But, in our opinion, those arc the additional reasons. 124. In any case, now we are to consider, whether the distinctive features pointed out by Andhra view can hold the field in S. 25N of the Act. Sub-clause (c) of sub-section (1) of S. 25 N of the Act requires that, notice in the prescribed manner is to be served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette, and the permission of such Government should be obtained under sub-section (2). Sub-section (2) of S 25N of the Act requires that the permission should either be granted to refuse on the basis of the reasons to be recorded in writing, and after making such inquiry as such Government or authority thinks fit. In case, no such permission either of refusal or of grant, is communicated within three months time, it would be deemed that permission has been granted on the expiry of three months. 125. It would thus be seen that in case of retrenchment in addition to the three months notice or payment of three months wages alongwith compensation as required by S. 25N (1) (a) & (b), the prior permission is must and necessary. 126. Though 'retrenchment' has been defined in S. 2 (oo) of the Act, the definition only makes the distinction between the termination of service on account of disciplinary action', 'voluntarily retirement' or 'retirement on reaching age of superannuation' or 'termination on the ground of ill-health' in comparison to or as against the termination of employee's services for any reason, whatsoever. 127. In other words, any type of termination except the above four categories would be treated as retrenchment. Earlier concept that the retrenchment can be done only when the workmen become surplus, is now neither warranted by the language of the definition clause of 'retrenchment' nor it can be accepted in view of latest and recent authoritative pronoucements of the Apex Court of this country in Santosh Gupta v. State Bank of Patiala (1980) SCC 340 , L. Robert D'Souza v. Executive Engineer, Southern Railway (1979) 1 LLJ 211 (Ker.) , State Bank of India v. N. Sundera Money (1976) 1 SCC 822 , Hindustan Steel Ltd v. Presiding Officer Labour Court, Orissa (1976) 4 SCC 222 , and plethora and superabundance of recent decisions. 128. 128. Now surplusage or the workmen being surplus cannot be insisted upon for retrenchment. What type of termination is retrenchment requires a complete compliance of various provisions contained in s. 25 of the Act. The above being legal position regarding definition implications meaning, amplitude, connotation of retrenchment, it is obvious that the principal reason for saving the provision of s. 25 Mf's language from being declared unconstitutional on account of Excel Wear's decision (supra) cannot be applied for saving under Section 25N of the Act. Surely and obviously. s. 2 (oo) of the Act provides no guidelines or norms or principal front which it can he deduced as to when retrenchment should be allowed by the State and as to when it should not be allowed. 129. If the earlier view that only surplus employee can be removed under the category of retrenchment, would held the field then certainly, there would have been scope for arguments that language of the law is also equally applicable for retrenchment and Andhra view can be considered for weighing of the constitutional validity against section 25N also. But on account of Santosh Gupta and other decisions, referred to above, there is no room for doubt that surplus age or the employee being surplus is not a necessary requirement of treating removal as retrenchment. 130. In fact, any type of removal or termination oil account of any reason or ground except the four categories, extracted above, in s. 2 (oo) of the Act is included in the connotation of retrenchment and, therefore, the State authorities cannot put the validity or justness or fairness of the retrenchment on the touch stone or on the test and requirement of law for granting such a permission. 131. When should the State authorities grant permission for retrenchment, would depend upon whims and caprice of the State functionaries ? Suppose the employer feels that huge loss is being suffered and caused in a particular department making it uneconomical and the State Government is also convinced of it but, whether it should be a ground for granting permission would still depend upon the discretion on the authorities. The legislature having not indicated either in S. 25N or anywhere else in the provisions of the Act, when the retrenchment should be allowed or not allowed, the executive authorities would be exercising naked discretion in an arbitrary manner fur granting or refusing permission. The legislature having not indicated either in S. 25N or anywhere else in the provisions of the Act, when the retrenchment should be allowed or not allowed, the executive authorities would be exercising naked discretion in an arbitrary manner fur granting or refusing permission. 132. In any case, the basic and fundamental reason for holding that the guidelines are given for 'lay-off' in the definition of lay off' cannot be followed in the case of retrenchment" and. that being so, the Andhra view to that extent is inapplicable in cases of retrenchment. 133. Now coming to the two distinguishing features between Sections 25N and 25-0 of the Act, it will have to be examined whether they are sufficient for holding that Excel Wear's decision of the Supreme Court is not applicable. In S 25-O of the Act, it is provided chat the closure could be refused if the authorities concerned were satisfied that the reasons for the intended closure of the Undertaking are not adequate or sufficient or such closure is prejudicial to the public interest. In view of the text of sub-clause (2) satisfaction of the appropriate Government in respect of the requirement of closure being genuine or just as not based on the satisfaction of the government, but the reasons given by the management were to be examined and if those reasons were held to be not adequate and sufficient or such a closure was held to be prejudicial to the general public then only refusal could be done. In other words, the satisfaction of the Government was to be done after perusing the reasons for the intended closure. Obviously, such a satisfaction pre-supposes the consideration of the reasons objectively to the touch stone of the guidelines or principles mentioned in sub- section (2) and, what is prejudicial to public interest can always be considered in judicial review, although no appeal or revision has been provided. Contrary to it, S. 25N (2) mentions no criterial, guidelines, principles or norms or reasons when the permission should be refused or granted. All that has been said is that the authority may make such inquiry as may deem fit and then grant or refuse the permission for reasons to be recorded in writing. Now, one is liable to guess and conjecture, what reasons should be given for granting permission or refusing permission in the absence of the guidelines. 134. All that has been said is that the authority may make such inquiry as may deem fit and then grant or refuse the permission for reasons to be recorded in writing. Now, one is liable to guess and conjecture, what reasons should be given for granting permission or refusing permission in the absence of the guidelines. 134. It is an appropriate stage now to examine whether such guidelines can be inferred from the Chapter V-A of the Act. Obviously, Chapter V-A only provides procedure for retrenchment. S. 25A provides for application of Sections 25-C to 25-E to various industrial establishments. S. 25-B defines the 'continuous service'. S. 23-C gives a right of workmen laid off for compensation. S. 25-D requires an employer to maintain muster roll of workmen. S. 25-E mentions certain cases and provides exceptions where compensation is not to be paid, who has been laid off. S. 25-F provides for notice in cases of retrenchment and the provisions regarding retrenchment compensation. S. 25-FF provides for compensation to workmen in case of transfer of undertaking. S. 25-FFA provides for a notice for closure. S. 25-G provides for principle of 'last come first go'. S. 25-H provides for re-employment of retrenched workmen S. 25-I has been repealed. S. 25-J mentions effect of laws inconsistent with this Chapter V-A. 135. Thereafter comes Chapter V-B which has been introduced by the Amendment in law vide Act No. 32 of 1976 (w. e. f. 5. 3. 1976). It would thus be seen that chapter V-A nowhere provides any principles or guidelines nor formulates any criteria as to when the retrenchment should be allowed or not allowed and, in what circumstances an employer can be permitted to retrench the workmen. Except the provision regarding the principle-'last come first go' in S 25- G of the Act, all other provisions of Chapter V-A only provide of retrenchment procedure and, that also is confined to notice and compensation. In other words, no restriction is there on retrenchment and there are no principles or guidelines where the retrenchment can be done and where it should not be done. Thus, it is impossible to have any guidelines from chapter V-A of the Act. 136. It is true that paramount intention and object of the Act and its various provisions are to provide machinery and procedure for the investigation and settlement of industrial disputes. Thus, it is impossible to have any guidelines from chapter V-A of the Act. 136. It is true that paramount intention and object of the Act and its various provisions are to provide machinery and procedure for the investigation and settlement of industrial disputes. This Act, as amended from time to time is the sheet-anchor of the industrial adjudication in this country and it was enacted to provide machinery and forum for the investigation of industrial disputes and for the settlement thereof and for the purposes analogous and incidental thereto. The Act was also enacted with the emergence of the concept of welfare state which implies an end to exploitation of workmen. 'The Act, therefore, was enacted to provide machinery and forum for adjustment of such conflicting aril seemingly irreconcilable interests without disturbing the peace and harmony in the industry assuring the industrial growth which was the prerequisite for a welfare State. 137. In Angus Engineering Works v. Hanif Mohd. 8 F. J. R. 605 (L.A.T.) , it was held that the desire of an employer- to teak: profit is natural and therefore, lawful. In Royal Calcutta Golf Club v. Third Industrial Tribunal (1960) ILLJ 461 , it was observed that it is not open to an industrial adjudicator to tell an employer as to how he should conduct his business. Gajendragadkar J., the principal architect of social justice in Indian judiciary. observed in Workmen of Subong Tea Estate v. Subong Tea Estate (1961 I-LLJ 333) , that so long as the retrenchment is carried out bona fide and is not vitiated by any consideration of victimisation or unfair labour piactice, and the employer comes to the conclusion that he can carry on his undertaking with reasonable efficiency with the number of employees retained by him after retrenchment, the Tribunal ought not ordinarily interfere with such decision Shelat J., in Parry & Co. v. P.C. Pal (1970) II LLJ 429 - AIR 1970 SC 334 , observed that it is not the function of the Tribunal to go into the question whether such a scheme is profitable or not, or, whether it should have been adopted by the employer. v. P.C. Pal (1970) II LLJ 429 - AIR 1970 SC 334 , observed that it is not the function of the Tribunal to go into the question whether such a scheme is profitable or not, or, whether it should have been adopted by the employer. It was further observed that, there is no provision in the industrial law which confers any power on the tribunal to enquiry into such a dispute so lung as it is not actuated by any consideration for victimisation or any unfair labour practice. 138. Gajendragadkar J., again, in Workmen of Subong Tea Estates's decision (supra) further held that it is for the management to decide the strength of its labour to carry out efficiently the work of its undertaking. If, therefore, as a result of re-organisation. the number of existing employees exceeds the reasonable and legitimate needs of the undertaking, the employer, subject to his obligations under Chapters V-A and V-B of the Act, can effect retrenchment. 139. Hidayatullah, J. in Ghatge & Patil Concern's Employees Union v. Ghatge & Patil (Transport) Pvt. Ltd. (1968) I-L1.J 566(SC) , observed that, - A person must be considered free to so arrange his business that he avoids a regulatory law and its penal consequences which he has, without the arrangement, no proper means of obeying. This, of course, he can do only so long as lie does not break that or any other law". 140. In Film Distributors Employees Association v. Metro Goldwyn Mayor (India) Ltd. (1962) II LLJ 99 Mad. (I). B.) and J.K. Iron & Steel Co. v. Iron & Steel Mazdoor Union (1956) I-LLJ 227 (SC) , it was observed that, subject to the provisions of Chapter V-A and V-B, the management has a right to take a decision to retrench the dead weight of uneconomic surplus. It was further observed that justification for retrenchment has to be assessed by the reasonableness of a decision taken by the management in a particular situation of actual or threatened losses. It is not to be assessed as the vindication of that step by future events and by the substituted judgment of any other agency, judicial or otherwise which has no responsibility or hazard in the industry. 141. It is not to be assessed as the vindication of that step by future events and by the substituted judgment of any other agency, judicial or otherwise which has no responsibility or hazard in the industry. 141. The principle enunciated in leading judgment of Workmen of Subong Tea Estates (supra) by Gajendragadkar J., are, in substance, as under: (i) The management can reterench its employees only for proper reasons, which means that it must not be actuated by any motive of victimisation or any unfair labour practice ; (ii) it is for the management to decide the strength of its labour force, and the number of workmen, required to carry out efficiently the work in his industrial undertaking, must always be left to be determined by the management in its discretion , (iii) if the number of employees exceeds the reasonable and legitimate needs of the undertaking, it is open to the management to retrench them and even on account of reasonable economic and rationalizatinn and bonafide adopted by the management or of ether industrial or trade reasons, the management can go ahead with the retrenchment; and, (iv) the retrenchment can normally be challenged but the Tribunal can certainly go into that the question, whether it was bonafide or otherwise. 142. We have extracted above some well-established principles and propositions about the judicial review of the retrenchment by the Labour Industrial Tribunals in references under the Act and a comprehensive study of the above would show that all that has been prohibited is victimisation, unfair labour practice or whimsical or capricious action. These post adjudication of just and properness of retrenchment by the Industrial Tribunals are mostly based on the action of the alleged retrenchment as victimisation, where the workmen had been protected by the Act but, otherwise, there are no norms or principles or guidelines for retrenchment in the Act, which mostly provides for the procedural safeguards regarding notice and compensation in lieu of retrenchment. 143. In view of the above, it is difficult to spell out the guidelines from the provisions of the Act as a whole. Even from the preamble of the Act, we cannot deduce the guidelines. 143. In view of the above, it is difficult to spell out the guidelines from the provisions of the Act as a whole. Even from the preamble of the Act, we cannot deduce the guidelines. True, it is for the industrial peace and harmony and cordial relationship between the employer and employees beneficiary rule of construction for interpreting the provisions should be adopted as the principles of social justice warrant it and, so also the directive principles and preamble of our constitution but, would it not be leaving it in vacuum if the guidelines and norms are not only not well defined but also no provision hinted at in the provisions regarding retrenchment or closure. 144. The Directive principles of the Constitution undoubtedly provide broad guidelines to the legislators but, how can the State authorities; while deciding the question whether the retrenchment should be allowed or not allowed, find out the guidelines in the Directive principles. To illustrate, by the 42nd Amendment Act, 1976 of Constitution, Article 43A was added providing of participation of the workers in the management of undertakings, establishments or other organisations engaged in any industry but, would it be proper to say that while deciding the question of permission for retrenchment, the State should necessitate scheme of retrenchment to be drawn only by a joint meeting of the workmen and the employer-management in the absence of any law. In fact, unless the legislator enacts the law that the workmen would be Directors of the Company and decides the question of retrenchment by a joint meeting, no guidelines can be inferred from the high-sounding ideals contained in the Directive principles which remain on the constitutional high pedestal, only. Again, the objects of the Act further cannot provide guidelines for accepting or refusing the permission because as is obvious from the objects of the Act, it is to provide machinery and forum for the investigation of the industrial disputes and for the settlement thereof. True, it is that exploitation of the workmen is to be estopped and conflicting interests of the workmen are to be adjusted so that the peace and harmony in the industry can be assured for industrial growth, which is the prerequisite for it welfare State. True, it is that exploitation of the workmen is to be estopped and conflicting interests of the workmen are to be adjusted so that the peace and harmony in the industry can be assured for industrial growth, which is the prerequisite for it welfare State. But, those are ideals and objects for achieving social justice' on the basis of collective bargaining, conciliation, arbitration and filing that compulsory adjudication so that peaceful relations can be maintained. But, as is obvious from the objects of the Act, the Act -foes not provide for any such social act for adjustment of conflicting interests. Such norms should be evolved and defined by keeping in view the social economic condition, the need of the workmen, the requirement of industrial social justice and interest of the parties & common good. 145. From the above, it is clear that no guidelines have been provided in the object of the Act and all that has been emphasised is that it is provided for industrial adjudication. 146. We have, therefore, no hesitation in holding that usual and general stock submission that the guidelines can always be inferred from the scheme of the Act, its objective laws or Directive principles of the Constitution or preamble or both, cannot result in specification and deduction of any such guidelines so far as the question of closure or retrenchment is concerned. It was precisely this situation which resulted in striking down of the provision of the relevant part of the provision of S. 25-O of the Act even though some guidelines were mentioned by the legislature. 147. If their Lordships of the Apex Court would have thought proper the guidelines are available in the object clause or the preamble or directive principles of the Constitution or, otherwise, then, they would not have struck down the subsection as a whole because it would have been apt and proper to spell out the meaning of the various touch-stone for granting or refusing such permission, which were contained and provided in S. 25-O of the Act in the form of reasons being not adequate and sufficient or, the closure being prejudicial to the public interest. In industrial adjudication when the reasons for retrenchment are adequate and sufficient, they are well known according to the scores of the decisions, referred to above, and particularly, the dictum laid down in Workmen of Subong Tea Estates's decision of the Supreme Court by Gajendragadkar, J. (supra). 148. Whether the reason is adequate or sufficient or, whether the closure is going to prejudicial to the public interest, could have been very well inferred from the object of the Act and preamble, if the submissions of Sarva Shri N.L.Jain, the learned Advocate General and Shri Mohan Punamiya. the leader of the Trade Unions, are to be accepted. It requires no prolonged arguments to say ill it absence of bonafides or adoptation of' unfair labour practic or victimisation could not have been sufficient or adequate reasons and the closure in such cases would have been prejudicial to the public interest but, in Excel Wear's decision (supra) no such attempt was made to read the preamble. object clause, and the other provisions of the Act to spell out, what is the meaning of'-adequate, 'sufficient', 'prejudicial to the public interest' as used in sub- section (2) of S. 25-0 of the Act. 149. We would, therefore, not be stretching the deduction too far, if we hold that the stock contention of taking guidelines from the scheme of the Act, preamble object clause, Directive principles of the Constitution, or the preamble of the, Constitution and treating them in 'sufficient' guidelines was not accepted, if not rejected, expressly in Excel Wear's decision (supra). It is not permissible for its to travel in the realm of imagination and then leave the question obscure, not we can become more pious than the "Pope", i. e., Supreme Court. 150. We have, therefore, no hesitation in holding that, so far as the question of absence of guidelines in S. 25-N of the Act is concerned, the provision is worst as there is none whereas in S. 25-0 of the Act there were some. It is also well-known principle of interpretation of statutes and canons of construction and adjudication of the constitutionality that if some part of a particular statute or Section is held to be unconstitutional, the Court can adopt -blue pencil' theory and declare the remaining part constitutional. It is also well-known principle of interpretation of statutes and canons of construction and adjudication of the constitutionality that if some part of a particular statute or Section is held to be unconstitutional, the Court can adopt -blue pencil' theory and declare the remaining part constitutional. Thus, if their Lordships of the Apex Court would have thought that guidelines can be taken from the object clause or preamble or scheme of the Act, or, Directive principles and preamble of the Constitution, then they could have said that though the touch stone of the adequacy or satisfactory or, prejudicial to the public interest are not valid yet the sub-section as a whole requiring the permission cannot be declared invalid or unconstitutional because, even after striking down these words and terms, the sub-section can still remain alive taking guidelines from the preamble, object clause of the Act, or Directive principles and preamble of the Constitution or, scheme of the Act. 151. There is no doubt that. when the Apex Court was considering the validity of S. 25-O of the Act on 29th September, 1978, not only Article 43-A of the Constitution has been introduced in Directive principles providing participation of the workmen and workers in management of industries but the preamble of the Constitution had also undergone a radical amendment by declaring the resolution to Constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC, 'socialist secular' having been added by the 42nd Amendment Act, 1976 and, therefore, their Lordships of the Supreme Court were well aware of the socialist goal to be achieved by ensuring Justice social- economical and political and equality of an opportunity and yet with taking resort to the guidelines from the above various sources, they struck down S. 25-O of the Act with the result that prior permission for closure which was introduced by the amendment in the Act had virtually become a dead. This naturally had resulted in the management closing down industries and putting the workmen on the road and in handicap at the time of raising industrial disputes as a post mortem operation only. This naturally had resulted in the management closing down industries and putting the workmen on the road and in handicap at the time of raising industrial disputes as a post mortem operation only. Obviously, it would be an uncalled effort for us or becoming more pious titan the pope in such a situation if in spite of clear and categorical verdict of the Apex judges of this country in Excel Wear's decision ( bid), we now hold that though the guidelines are not given in S. 25-N of the Act and even-though the Apex Court did not utilise the object of the Act, preamble of the Act and Scheme of the Act, various other provisions of the Act and, Directive Principles with Preamble of the Constitution of India to fill in the vacuum and gap of the absence of guidelines, we should not treat that to be so. It is not permissible for us to say and make even an indirect attempt over the wisdom of the decision or reasons which persuaded the Supreme Court to not to use the above -perennial source" as guidelines for saving S. 25-0 of the Act from the onslaught of Article 19 (I) (g) of the Constitution of India. 152. We have, therefore, no hesitation in expressing our disagreement, with all respect to their Lordships of Andhra Pradesh High Court though, as we have held above, the definition of 'lay-itself' itself, was primarily reason for the view taken by Andhra Pradesh High Court that, Excel Wear's decision of the Supreme Court (supra) is not applicable. 153. In view of the above discussions, we are of the opinion that one important bedrock on which Excel Wear's fabric has been tailored and used as a lever, relates to the absence of the guidelines making it arbitrary and unreason- able restrictions and that bedrock exists in the present case of Section 25 N of the Act, also. 154. In our considered opinion, this ground alone is sufficient for holding that the decision in Excel Wear's case (supra) applies for S. 25-N here also even if we are persuades to hold that the requirement of summary industry and recording of the reasons in writing, provided in S. 25-N is sufficient to undo the vice of absence of appeal or revision. 155. 155. Both, Shri Jain, the learned Advocate General, and Shri Punarniya with Shri B.L. Sautdariya the learned Counsel for the Rajasthan Trade Union Kendra, have argued that even though all appeal has not been provided, this Court can always have judicial review under Article 226 of the Constitution and, therefore, this infirmity is not fatal. We may now only point out that after Excel Wear's decision on this point, it is too late in the day for us to hold that judicial review can be substituted as provision regarding appeal or revision or review. 156. If S. 25-O of the Act was struck down on this ground, how can a similar provision of S. 25-N can be saved by our substituting judicial review under Article 226 of the Constitution in place of appeal. 157. It should further be kept in view that writ jurisdiction is discretionary and interference is very rare in exceptional cases as held by their Lordships of the Supreme Court and constitutional Bench in the following leading and authoritative pronouncements mostly on labour laws- G. Veerappa Pilai v. Raman & Raman Ltd ( AIR 1952 SC 192 ) , Nagendra Nath v. Commissioner of Hills ( AIR 1958 SC 398 ) , State of Madhya. v. Balabhai & ors. ( AIR 1964 SC 1006 ) , Syed Yakoob v. Radhakrishnan ( AIR 1964 SC 477 ) , Thansing Nathmal v. Supdt of Taxes ( AIR 1961 SC 1419 ) , M. Naina Mohamed v. A Natrajan ( AIR 1975 SC 1867 ) , State of Andh. Pra. v. Chitra Venkstarod (AIR 1975 SC 2152) , Managing Director v. Vijaya Narainbajaj (1980 I-LL J 222) , And Parry & Co Ltd v. P.C. Lal (supra) (26). 158. We find substantial force in the contention of Shri F.S. Nariman, the learned counsel for the Management J.K Synthetics, who has been assisted by a team of Advocates, that in the absence of guidelines, the validity or invalidity of the reasons for refusal to give permission cannot possibly be tested by a writ court how would the court come to the conclusion that the decision so arrived at by reason of extraneous or irrelevant consideration if the considerations on the basis of which the decision is to be arrived at are not stated in the statute? 159. 159. We are firmly of the view that the submission of Shri Jain regarding guidelines being found, in the form of the rules cannot be accepted, as similar form are prescribed for closure and, such an a argument was repelled in Excel Wear's decision (supra). In para 23. Untwalia J.. noticed the argument of counsel for Union of India in that case which reads as follows : "An application form requires the employer applying for permission to close down to such comprehensive and detailed information that it will enable the appropriate Government to take appropriate decision in appropriate cases." 160. We have also held above that the decision of Andhra Pradesh high Court in General Industrial Society's case (supra) is of no avail to the respondents for upholding the validity of S. 25-N of the Act. It may further be pointed out that the Division Bench of Andhra Pradesh High Court in I.D.L. Chemicals Ltd. v. T. Gattaiah and others (Writ Appeal No. 16/1981 decided on 4th December, 1981) (unreported) following the earlier decision in General Industrial Society's case (stipra) which was relating to S. 25M, observed that S. 25N of the Act is valid. 161. This decision in I.D.L. Chemicals' case (supra) is based on the earlier pronouncement of Andhra Pradesh High Court in General Industrial Society's decision (supra) which we have already commented. The Supreme Court has stayed the operation of the judgment in I.D.L. Chemicals case (supra) while passing the order on 17th December, 1981 in CMP No. 29412/81 in Civil Petition No. 3151/1981. This ex parte stay order was confirmed by the Supreme Court on 16th April, 1982 as would be obvious from the following reproduction, which has been extracted from the written arguments submitted before us by the management s counsel : "Coram : "The Application For Stay above mentioned being called on for hearing before this Court on the 16th day of April, 1982 UPON hearing counsel for the appearing parties THIS COURT in partial modification of its order dated the 17th December, 1981 passed in Civil Miscellancious petition No. 29412 of 1981 DOTH ORDER that the respondents herein he and are hereby permitted to withdraw the amount deposited by the applicant therein in the Andhra Pradesh High Court pursuant to this court's order dated 5th June, 1980 in Civil Miscellancious petition No. 7280 of 1980. AND THIS COURT DOTH FURTHER ORDER that pending the hearing and final disposal by this court of the appeal above mentioned this court's order dated the 17th December, 1981 granting stay of the operation of the judgment and order dated 4th December, 1981 of the Andhra Pradesh High Court in Writ Appeal No. 16 of 1981 shall continue. And This Court Dotha Dosti Order That This Order be punctually observed and carried into execution by all concerned." 162. It is also not without significance that no stay has been granted so far against the Madras judgment although special leave has been granted. It is true that merely by stay of operation of the decision the effect of it is not wiped out and by non-obtaining of the stay order of another High Court cannot have any binding effect on its but we are mentioning them to show the circumstances and developments which are taking place in respect of the validity of S 25-N and S. 25M and S. 25-O on the ground of same species wielt slight difference and addition by amendment of 1976 for providing restrictions on lay,off', retrenchment and closure in industrial establishments having 300 workmen or more 163. It may also be pointed out here that all that legislature intended is not conclusive for interpreting the statute yet as is obvious from the statement of the Minister concerned, an extract of which has been reproduced in further written arguments of the management-J K. Synthetics, on 27th April, 1983 made in the Parliamentary Debates (Rajya Sabha). Shri Veerendra Patil, the Union Minister of Labour has expressly mentioned that the State intends amending Section 25 M and Section 25 N on the same lines as the amendment to S 25-O incorporated in the Amendment Act, 1982. The management J. K. Synthetics by subsequent application has alto pointed out that on 25th September, 1983 Shri B.G. Deshmukh, the Union Law Secretary, at the 31st Labour Ministers' conference held at New Delhi on Saturday, the 24th September. The management J. K. Synthetics by subsequent application has alto pointed out that on 25th September, 1983 Shri B.G. Deshmukh, the Union Law Secretary, at the 31st Labour Ministers' conference held at New Delhi on Saturday, the 24th September. 1983, the news item of which has been published in the Financial Express of 27th September, 1983, disclosed before the newsmen that states have been advised to go ahead with their own amendments to those portions of the Act relating to lay-offs and retrenchment because they have become necessary following certain High Courts striking down the relevant provisions making it difficult for the state Government to protect the worker's interests. This all has become necessary because according to Shri Deshmukh, the Union Government will take some time to amend the lndustrial Disputes Act. 164. We are not basing our judgment on these statements of the Minister or the Secretary either in the Parliament or outside it but the facts have been mentioned for showing the legislative intent as to how the legislature or the Union Government is acting in these matters. Incidentally, it also shows that after Excel Wear's decision (supra) of 1980 and two judgments of Madras High Court in the year 1980 and 1981 and even after stay of operation of Andhra Pradesh High Court's decision in I. D. L. Chemicals' case (supra) by the Supreme Court, the legislative process in this respect has not been activised in spite of the socialistic objective as contained in the preamble and directive principles of the state policy. In such circumstances, it is difficult for this court to make any effort to stretch its legal frontiers for getting out of the judgment of Excel Wear's case (supra) in spite of Article 141 of the Constitution even though the court is alive to the requirement of ''social Justice" and the need to interpret the law as far as possible and permissible in such a manner- that the workmen are not put out of employment and, the relief is given to them. 165. We are conscious of, what was observed by the Seven Judges Bench of the Apex Court in Pathumma v. State of Kerala ( AIR 1978 SC 771 ) , which has been relied upon by Shri Samdariya arid Punamia. 165. We are conscious of, what was observed by the Seven Judges Bench of the Apex Court in Pathumma v. State of Kerala ( AIR 1978 SC 771 ) , which has been relied upon by Shri Samdariya arid Punamia. The relevant observations are being extracted hereunder for ready reference Interpretation of Statutes-Constitutional law-Duty of Courts should interpret the constitutional provisions against the social setting of the country so as to show a complete consciousness and deep awareness of the growing requirements of the society, the iucreasing needs of the nation, the burning problems of the day and the complex issues facing the people which the legislature in its wisdom, through beneficial legislation, seeks to solve. The judicial approach should be dynamic and elastic, rather than rigid. (AIR 1961 SC P. 1602 followed)." "The fourth test which has been laid down by this court to judge the reasonableness of a restriction is to examine the nature and extent, the purport and content of the right, nature of the evil sought to be remedied by the statute, the ratio of harm caused to the citizen and the benefit to be conferred on the person or the community for whose benefit the legislation is passed, urgency of the evil and necessity to rectify the same. In short, a just balance has to be si ruck between the restriction imposed and the social control envisaged by cause (6) of Article 19." (para 18). 166. In the case of Narendar Kumar v. Union of India ( AIR 1960 SC 430 ) , the Apex Court also observed as under : "In applying the test of reasonableness, the Court has to consider the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether restraint caused by the law is more than was necessary in the interests of the general public." 167. It will also be necessary to consider in that connection whether restraint caused by the law is more than was necessary in the interests of the general public." 167. We are also conscious of what was held by the Apex judges of Apex Court in Bachansingh v. State of Punjab ( AIR 1971 SC 2164 ), which reads as under : "The Court has in uncertain terms laid down the test for ascertaining reasonableness of the restriction on the rights guarenteed under Article 19 to be determined by a reference to the nature of' the right said to have been infringed, the purpose of the restrictions sought to be imposed, the urgency of the evil and the necessity to rectify or remedy it all of which has to balanced or remedy with the social welfare or social purpose sought to be achieved. The right of the individual has therefore to be sublimated to the larger interests of the general public." 168. In Pathumma's decision their Lordships of the Supreme Court also held that the Court has to see whether by virtue of the restrictions imposed on the right of the citizen the object of the statute is really fulfilled or frustrated. If there is a direct nexus between the restriction and the object of the Act then a strong presumption in favour of the constitutionality of the Act will naturally arise. 169. In the case of K.K. Kochunia v. State of Madras ( AIR 1960 SC 1080 ) , the Apex Court further observed that, "But the restrictions sought to be imposed shall not be arbitrary, but must have reasonable relation to the object sought to be achieved and shall be in the interests of the general public". 170. The observations made by their Lordship. of the Apex Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa ( AIR 1978 SC 548 ) , also deserve our serious consideration and the followings are being extracted with a view to point out that, we are qute alive and sensitive to the social perspective of part IV of the paramount law,- "Yet a third signpost. of the Apex Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa ( AIR 1978 SC 548 ) , also deserve our serious consideration and the followings are being extracted with a view to point out that, we are qute alive and sensitive to the social perspective of part IV of the paramount law,- "Yet a third signpost. The functional focus of this industrial legislation and the social perspective of part IV of the paramount Law drive us to hold that the dual goals of the Act arc contentment of workers and peace in the industry and judicial interpretation should be geared to their fulfilment, not their frustration. A worker-oriented statute must receive a construction where, conceptually, the keynote thought must be the worker and the community, as the constitution has shown concern for them, in Articles 38, 39 and 43." (Para 36). 171. What has been observed in State Bank of India v. N. Sundara money (supra) is fresh in our mind and the last and the latest exposition of law by Bhagwati J., in National Textile Workers' Union v. P.R Ramakrishnan ( AIR 1983 SC 75 ) , is that it is now accepted on all hands, even in predominantly capitalist countries, that a company is not property. The traditional view that the company is the property of the share holders is now an exploded myth and there was a time when a group controlling the majority of the shares in a company used to say : "This is our concern. We can do what we like with it". It was further observed that, today social scientists and thinkers regard a company as a living, vital and dynamic, social organism with firm and deep rooted affiliations with the rest of the community in which it functions and, a company, according, to the new Socio-economic thinking is a social institution having duties and responsibilities towards the community in which it functions. 172. We are also well a live to and aware of the memorable words of O. Chinappa Reddy J., mentioned in the same judgment of National Textile's case (supra) which has also made us conscious of our social legal duties as judges. 172. We are also well a live to and aware of the memorable words of O. Chinappa Reddy J., mentioned in the same judgment of National Textile's case (supra) which has also made us conscious of our social legal duties as judges. The memorable words are being reproduced as under : " .......You take my life when you do take the means whereby I live" (Shakespeare : The Merchant of Venice) This indeed is the cry of the workers of Rama Krishna Industries P. Ltd. who desire to be heard before the bread is taken out of their mouths ....,. Unlike the shareholders, to most of whom the shares they hold represent mere investments and to some of whom, the means to control the affairs of the company to the workers, the life of the company is their own and its welfare is theirs. They are so intimately tied up that their interests in survival and the well being of the company is much more than the interest of any shareholder-be he an investor, a 'corporate Commander' or a corporate manipulator. How then is it possible that those persons-the workers whose very existence may be under threat of extinction-are to be denied a hearing, even if sought, when a petition for winding up is presented to a court. It is said that the Companies Act does not contemplate a hearing to the workers. Only contributors and creditors may be heard it seems. Workers may not be allowed to throng the company court, only those who buy, sell and control shares and the usurers, the stock-brokers and the money brokers ....." (para 14) 173. However, as the have pointed out in spite of our efforts to steer clear through Excel Wear's decision (supra) we are feeling our helplessness under Article 141 of the Constitution. It is a matter of concern to us that in spite of Excel Wear's decision in 1980 and two decisions of Madras High Court and stay of operation of judgment of Andhra Pradesh High Court by the Supreme Court neither legal army of the social justice and State has been extended to get these matters reconsidered in the perspective in which the State wants to convass it before the Apex Court for protecting the mass lay-off. retrenchment and closure without prior permission, nor the legislative wing of the Union of India or State has acted with promptness to protect the workmen give them social justice. 174. We are not impressed by the submission of Shri Nariman, the learned Advocate that because the retrenchment is declared illegal on account of the contravention of the provisions regarding prior permission and, therefore, the reference cannot be entertainer) on the legility of the retrenchement and, whether the retrenchment is just and proper. In our opinion, the illegality is limited to the extent of obtaining of proper permission and its effect in respect of consequences to follow. It cannot debar industrial adjudicating machinery from deciding it on merits. Be that as it may, we do not intend to decide this feud precisely because, firstly, it was not agitated in Excel Wear's case (supra) in the similar circumstances and, secondly, we are striking down S 23-N of the Act as on identical grounds to that of Excel Wear's decision (supra) under Act. 141 compulsion and we do not intend to extend it any further. In view of this, we are leaving it open to be agitated in any other matter and refrain from giving any finding and final decision at this stage. 175. Shri N.L. Jain, the learned Advocate General, argued that retrenchment is not a fundamental right and, therefore, Article 19(1) (g) of the Constitution cannot apply. This argument was not pressed into service by Shri Punamia and for the obvious reasons and by scores of decisions, it has been held by the Apex Judges of this country that retrenchment is an integral part of the business, trade and, if trade or business is it fundamental right, the closure, retrenchment and 'lay off' which are integral part of business and trade are also fundamental rights, the of course, reasonable retrenchment can always he put to prohibition and control it under Article 19 (1) of the Constitution. In this respect, we may point out that the following decisions ref the Supreme Court clinches the issue and we need not labour any further. In this respect, we may point out that the following decisions ref the Supreme Court clinches the issue and we need not labour any further. Krishna Kumar v. State of J. & K ( AIR 1967 SC 1368 ) , Bijay Cotton Mills v. State of Ajmer ( AIR 1955 SC 33 ) , Express Newspapers v. Union of India ( AIR 1958 SC 578 ) , Manoharlal v. State of Punjab ( AIR 1961 SC 418 ) , Ramdhandas v. State of Punjab ( AIR 1961 SC 1559 ) , Manglore Ganesh B.D Works v. Union of India ( AIR 1974 SC 1832 ) . Chinta Lingam v. Union of India (Supra) Excel Wear v. Union of India (Supra) 176. We are, therefore, of the opinion that it is well settled law that the expression '-trade or business" in 19 (I) (g) is very wide. The word "Business" connotes "Some real substantial and systematic or organised course of activity of conduct with a set purpose." 177. We may new deal with the second limb or next pillar of Excel Wear's decision. in little detail, namely, absence of appeal or revision. In this connection, it must be observed that we have already observed in the earlier stage of this judgment that whenever there is necessity of satisfaction by Public authority and that satisfaction is contemplated to be objective then the inquiry howsoever, meagre it may be, is always contemplated even in the absence of'the express wordings in the statutes. 178. Again, as is clear from S. 25-0 of the Act, as it existed earlier, the reasons given by the management-employer were to be examined on the touch stone of the guidelines given therein and the satisfaction of the authority concerned on that basis was to be made the basis of the decision for either refusing or accepting the prayer for permission and, therefore, even under S. 25-O of the Act, the requirement of some sort of inquiry or investigation was inherent. It is true that in S. 25-N of the Act it has been made patent what was latent in S. 25-O of the Act but, here also, it has been left to the discretion of the authority as to what type of inquiry he would like to conduct and it would be too much to expect that this means, both the parties would be allowed to lead evidence as is contemplated by a judicial or quasi judicial inquiry. 179. In our opinion, therefore, the mere fact that S. 25-N contemplates some sort of inquiry according to the discretion of the authority and further recording of the reasons, therefore, it cannot be saved from the vice of the violation of Article 19 of the Constitution even though no appeal or revision has been provided. 180. It is true that there absence of appeal or revision cannot vitiate a particular provision of the Act or statute, unless something more is shown. However, as already pointed out in Excel Wear's decision the importance of provision of appeal or revision in such circumstances as are in existence in the present case, would ensure fairness and reasonableness of the restriction. It would be useful to point out here that the provision regarding deeming permission on account of expiry of time and absence of refusal, goes to show that even if no written order recording reasons is passed, there would be pet mission by implication. It is difficult to appreciate, how on the one hand, the reasons are to be recorded, for refusing permission, on the other hand, one call, avoid recording of reasons by eflux of time and then, neither the workmen nor any one else can challenge that order. Though the workmen have not challenged this provision. so far, yet I have mentioned it only for this reason that the provision of deeming permission instead of helping to solve the problem can create problem in more than one ways. 181. In our view, merely because, the reasons are to be recorded on the basis of some summary inquiry, neither the possibility of arbitariness can be ruled out nor the absence of appellate forum or review forum which has been held to be fatal in Excel Wear's decision, can be undermined. 182. 181. In our view, merely because, the reasons are to be recorded on the basis of some summary inquiry, neither the possibility of arbitariness can be ruled out nor the absence of appellate forum or review forum which has been held to be fatal in Excel Wear's decision, can be undermined. 182. We are further convinced that merely because there is a clause, "after snaking such inquiry as such Government or authority thinks fit" in S. 25-,N(2) of the Act and there is no such corresponding clause in S. 25-0(2) of the Act, would not result in taking out from S 15-N(2) from the consequences of Excel Wear's decision (supra). In S. 25-O (2), the words used are "the appopriate Government may, if it is satisfied". It is of-course true that when the legislation uses the words or phrases, it is too much to hold that they were not contemplating different implications and in spite of different phrases having been used, the provision was identical. However, as held in Siemens Engg. & Mfg. Co. Ltd v. Union of India (supra), a fair and proper hearing to the person sought to he affected by their orders and clear and explicit reasons in support of the orders are contemplated by the Apex Court from the administrative authorities and Tribunals, also. Justice Bhagwati, speaking for the court made the above objectivesexplicit. 183. Even for the distinction sought to be pointed out on the ground that the reasons are to be recorded in S. 25-N of the Act, Siemens Engg. Co.'s case (supra) further points out that the recording of reasons is inherent. Again, speaking for the Court, Bhagwati J., observed as under: 184. We are also convinced that strong reliance placed upon by Shri Nariman, on Organo Chemical Industries v. Union of India (supra) has got great relevance as their Lordships, Krishna Iyer and A P. Son, JJ., of the Supreme Court followed the- dictum of law laid down in Siemens' case (supra) with approval and held that the holding of the inquiry and giving of the reasons are inherent requirement of administrative bodies and Tribunals. 185. 185. Thus, the distinction pointed out by Andhra view (supra) on the above two grounds which seemingly appears to be different to this limited extent, is not based oil any real difference and we have got no hesitation in holding that the provision for holding such inquiry and giving of reasons firstly is explicit in, S. 25-N and implicit in S 25-0 of the Act, as for the reasons given above and, secondly it would not create any material difference between the two provisions in order to judge the reasonableness of restrictions under Article 19 (1) (g) of the Constitution consequently this umbrella spread by M/s Punamia N L join, and Sainadaria cannot save S. 25-N of the Act from the application of Excel Wear's decision (supra). 186. We may here also mention that the verdict of Dwarka Prasad's case (supra) was sought to be overcome by the learned Advocate General and Shri Punamia on the ground that in later decision of the Apex Court, Dwarka Prasad's view has been watered down and distinguished in Hari Shanker Bagla v. State of M.P. ( AIR 1954 SC 465 ) and C Lingam v. Government of India (supra). 187. In Harishanker Bagla's decision (supra) 'he Court pointed out that reference to the decision in Dwarka Prasad's case was not very apposite and it has no bearing on the case. The destinction was pointed out between the provisions of S 4 (3) of the U.P. Coal Control Order which were declared ultra vires in Dwarka Prasad's case and the control order which was in challenge in Madhya Pradesh case where, there were the various directions and rules 1-did down by the Central Government for the grant or refusal of permission which were held to be guidelines for the Textiles Commissioner in order to implement the policy of regulating, the transport of cotton textile in the manner that will ensure and even distribution of the commodity in the country and making it available on fair prices to all.a We are of the opinion that the principles laid down in Dwarka Prasad's case were neither watered down nor undermined in Harishanker Bagla's decision (supra) but all that was laid down was that law under challenge in the two cases was having distinguishing features, inasmuch as whereas the Madhya Pradesh desk law provided guidelines the U. P. Coal Control order gave unregulated arbitrary discretion. In view of this, it cannot be held that the view taken in Dwarka Prasad's cases has been watered down in Hari Shanker Bagla's case. 188. Now, C. Lingam's decision (supra) is based on a concession of the learned counsel, Mrs. Pappu which is obvious from the following:- "Indeed, Mrs. Pappu quite properly agreed that if the State Government alone had the power to issue the permits the challenge on the ground of unreasonableness of the restrictions would not be available. We consider that there is no bar to any of the aggrieved parties approaching the State Government by means of a representation for a final decision even if the matter has been dealt with by the District Collector or the Deputy Commissioner of Civil Supplies in the first instance and the permit has been refused or wrongly withheld by these officers." 189. It is true that in C. Lingam's decision, reference has been made to K.L. Gupta v. Bombay Municipal Corporation ( AIR 1968 SC 303 ) Pannalal Binjraj v. Union of India ( AIR 1957 SC 397 ) , wherein it has been observed that the abuse of power should not be easily assumed where discretionary powers are given to high officers top ranking authorities. Similarly, in Organo Chemical Industries v. Union of India (supra), it has been observed that an appeal is not an indispensible imperative and its absence is not a sure index of arbitrary potential. However, a close study of the above decisions would show that in each case, the provisions under challenge were considered in relation to the other safeguards available in the Act and over all impacts of absence of appeal. 190. Even in Orgrno Chemical Industries v. Union of India (supra), their Lordships of the Apex Court finally observed as under : "It depends upon the nature of the subject matter other available correctives, possible hard flowing from wrong orders and a wealth of other factors." In Organo Chemical Industries's ease (supra), their Lordships were pleased to illustrate the above by giving the example of the law making death sentence conclusive without an appeal and a line of Rs. 5/- for minor offence by Summary trial if given, the finality may be challenged as unconstitutional. Their Lordships further observed that maximum harm is pecuniary liability. 191. 5/- for minor offence by Summary trial if given, the finality may be challenged as unconstitutional. Their Lordships further observed that maximum harm is pecuniary liability. 191. We, on a thoughtful consideration of the principles laid down in these judgments of Hari Shanker Bagla, C. Lingam and Organo Chemical Industries's cases (supra), are of the view that we are unable to carve out or articulate an exception for the application of Dwarka Prasad's case (supra). In the present case because of the various reasons which, we have already given above, as having been accepted by the Excel Wear's decision, the principle of there being total absence of guidelines for refusal of permission of retrenchment secondary, total absence of appeal or revision or review before the superior authority or quasi-judicial or non quasi judicial authority under the statute.' 192. The twin reasons given, above by the Supreme Court applies with more rigor and force because as already mentioned above, in S. 25-0 of the. Act, there were guidelines which were found to be inadequate and arbitrary, in S. 25-N of the Act there are no guidelines, at all. We have already giver, the detailed reasons above for accepting the application of Excel Wear's decision against the validity of S. 25-N also and we need not repeat here, again. 193. We may point out here that it is precisely due to this realisation that the legislature while re-enacting S. 25-0 have given guidelines and further provided the following safeguards in the form of clause or sub-sections (48 &(5) to S. 25-O the Act, Shri Virnedra Patil, the Minister concerned, has observed on the floor of the house that the Government intends to amend S. 25-M and 25-N, on the identical lines of S. 25-O as incorporated in the Amendment Act, 1982 and shows that there is a growing realisation for providing just and fair safeguards in the interest of all concerned to ensure just and fair play and to take out S. 25-N also from the alleged mischief of the unreasonableness of the restrictions under Article 19 (1) (g) of the Constitution. 194. M/s N. L. Jain, Mohan Punamia and P. L. Samadaria also invited our attention to the fact that no inquiry and no appeal is provided under Sections 9, 10, 12-(5), 25-FA (2) and 25-FFA (2) of the Act and yet they have not been declared invalid. 194. M/s N. L. Jain, Mohan Punamia and P. L. Samadaria also invited our attention to the fact that no inquiry and no appeal is provided under Sections 9, 10, 12-(5), 25-FA (2) and 25-FFA (2) of the Act and yet they have not been declared invalid. Shri Nariman in reply to the above submitted that they are only referring provisions purely administrative in nature and there cannot be and anology between Sections 25-N, 25-M and 25-O of that Act because Sections 25-M, 25-N and 25-O provide restriction on the fundamental rights of a citizen to carry on his trade, business, industry which includes the commencement of the business as well as its closure, retrenchment, lay-off, all of which are integral part of it. 195. We do not intend to enter into these new dimensions because, in our opinion, the plethora of authorities, referred to above, all emphasise the application of the principles depending upon nature of the statute under challenge taking into consideration the cumulative effect on various factors pointed out above. We are not called upon to decide the validity of other provisions and therefore, it would he an avoidable diversion to enter into the controversy about the other provisions of the Act. 196. Shri Punamia pointed out that there was no justification for the retrenchment because, the process has not become uneconomic and the Company was earning huge profits till recently. She Punamia pointed out certain extracts from the balance sheets. Shri Nariman controverted the above and pointed out the later balance sheets and reports. Shri Nariman further submitted that, but for compelling genuine economic reasons, the Company would not have taken the risk of payment of such huge compensation which is running in Crores. 197. We are of the opinion that just and fairness of the retrenchment cannot be adjudicated by us on the basis of stray figures and documents as it. requires a wholesome adjudication by competent Industrial Tribunal or Labour Court, as the case may be. We are glad that a reference has already been made as pointed out by learned Advocate General who has filed an application before this Court on 2nd September, 1983 and, further while making this reference, an order has also been passed under S. 10-K (I) of the Act as amended by Rajasthan (Amendment) Act 14 of 1970. We are glad that a reference has already been made as pointed out by learned Advocate General who has filed an application before this Court on 2nd September, 1983 and, further while making this reference, an order has also been passed under S. 10-K (I) of the Act as amended by Rajasthan (Amendment) Act 14 of 1970. By virtue of this reference, the Industrial Tribunal would now adjudicate whether the retrenchment in four divisions, units of the Company was justihcd and, if not, to what relief the workers are entitled. The reference further takes into consideration the contingency of S. 25-N of the Act being declared invalid by the High Court, in the present cases, and require the Industrial Tribunal to decide, whether in such casts the retrenchment was in accordance with other provisions of the said Act. 198. We further find from the copy of the order submitted by the learned Advocate General that certain other reliefs have also been granted by the Government including the payment of amount of Rs. 1000,'- to each retrenched workman which will be adjusted in accordance with the Award of the Tribunal. We further find that the State Government has also issued directions that the management Company, should make sincere efforts to absorb the retrenched workmen in other cells or sections of other divisions/units controlled by them. 199. We are not making any comments on the above order nor expressing any opinion about their validity but we have noticed them to express satisfaction on the efforts of the statutory functionaries of the State for making immediate reference and further providing relief, as mass retrenchment causes a serious human problem for the workmen and the State committed to socialism and emancipation of the workmen's conditions is expected to act with initiative promptness to remedy the evils and do justice where-ever injustice has been done, if any, and save them from starvation proving "ubijus ibi remedium". 200. We have, therefore, no hesitation in holding that two distinctive features of "the reasons to be recorded and summary inquiry" as one may deem proper, are not enough to prevent Excel Wear's bull entering and striking down of S. 25 N of the Act. 200. We have, therefore, no hesitation in holding that two distinctive features of "the reasons to be recorded and summary inquiry" as one may deem proper, are not enough to prevent Excel Wear's bull entering and striking down of S. 25 N of the Act. Consequently, it is our firmed conviction, on the consideration of the entire material facts and law, that the present validity of S 25-N ( 1) (c) and sub-sections (2) and (6) of S. 25 N of the Industrial Disputes Act cannot be adjudicated in isolation but, it would sim and sink alongwith S. 25-O of the Act only. So long as S. 25-O of the Act has been made dead, the relevant provision of S. 25-N of the Act regarding prior permission contained in sub- section (I ), (2), and (6) is also violative of Art 19 (1) of the Constitution. and consequently, it is declared unconstitutional and ultravires. 201. Haying come to the above conclusion, we are not inclined to enter into other facets of the controversies raised by Shri F. S Nariman. the leading lawyer of this country, that S. 25-N of the Act nowhere keeps scope for reference regarding justness of the retrenchment to the Labour Tribunal. We are not impressed by this submission of Shri Nariman. In our opinion, simply because without taking prior permission, the retrenchment becomes illegal, it would not mean that it would be unjust also. It is always open to the employer-management to prove before the Tribunal that the retrenchment was just, proper and. we have got no hesitation in holding that the proper forum for deciding justness or otherwise of the retrenchment after the industry's close, is only the Labour Court or Industrial Tribunal, as the case may be. 202. In our opinion, a reference can always be made under S. 10 of the Act and it is open to the Labour Unions or management to move the Government. In the present case, not only the Government has been moved by the employer but also by the employees as is obvious from the Rajasthan Notification No F. 1 (1) (616) Sram 83 dated the 28th August, 1983, a copy of which has been placed before us by the learned Advocate General. 203. In the present case, not only the Government has been moved by the employer but also by the employees as is obvious from the Rajasthan Notification No F. 1 (1) (616) Sram 83 dated the 28th August, 1983, a copy of which has been placed before us by the learned Advocate General. 203. In view of the above notification of the Government, the situation is obviously and prima facie eased on this record atleast inasmuch as reference would now be decided according to law. 204. In view of our above decision, the striking down sub-clause (c) of sub-sec. (1) of S. 25-N, read with Sub-sec. (2) and (6) of S. 25-N and Section 25-Q of the Act, which we have been compelled to do in view of Excel Tear's judgment of Article 141 of the Constitution, in spite of having all concern and sensitivity for suffering of the retrenched workmen, we cannot, as a logical and legal consequences of it, accept the writ petition No. 213/19583 filed by Rajasthan Trade Union Kendra. However, as we have observed above about our satisfaction due to the Government notification giving relief to the workmen and further to ensure the industrial peace, we expect that all, the Government, management Company and the workers, would abide by it both in the letter and spirit and till the reference is decided by the Industrial Tribunal would try to provide fresh employment to the retrenched workmen, as per the directions of the State Government in the above notification. 205. In the net result of the above discussion, we allow the writ petition No. 409 of 1983 Al is J.K. Synthetics Ltd and another v. Union of India and held that S. 25-N (1) (c) read with sub-sec. (2) and Sub. S. of S 25-N and S. 25-Q are ultra vires and unconstitutional. We further prohibit respondent State of Rajasthan and its functionaries from implementing the above provision of S. 25-N and 25-Q against the petitioner-Company till they are suitably amended. 206. (2) and Sub. S. of S 25-N and S. 25-Q are ultra vires and unconstitutional. We further prohibit respondent State of Rajasthan and its functionaries from implementing the above provision of S. 25-N and 25-Q against the petitioner-Company till they are suitably amended. 206. Since we hold the S. 25-N (I) (c) and sub-S. (2) & (6) of S. 25-N of the Act as unconstitutional and the corresponding provisions of S. 2)-Q of the Act for prosecution on account of contravention of S. 25-N to this limit is also unconstitutional therefore, the order or direction for prosecution against the petitioner-company Director and, or his officers in respect of non-obtaining of prior permission of the Government and notice dated the 19th February, 1983 (Ex. C) cannot be sustained is consequently quashed and set aside. 207. As a logical and legal corollary of this, writ petition No. 213 of 1983 filed by Rajasthan Trade Union Nedra against retrenchment and praying many other reliefs in connection with the retrenchment of the employees cannot 60 accepted and is hereby dismissed. 208. In view of the fact that we are accepting writ petition filed by M/s J. K. Synthetics Ltd. solely on account of compulsion of Article 141. as indicated above, and because we are convinced that the retrenchment would cause great hardship to more than 3000 persons whose cause is being espoused by their Union Kendra, we direct that the parties would bear their own costs in both the Writ petition:. 209. Per Hon'ble Sidhu. J. : In this petition under Article 226 of the Constitution, the constitution validity of sections 23-M. 25-N and 25-Q of it e Industrial Disputes .Act, No. 14 of 1947 as amended by the Act No. 32 of 1976, is challenged and he petitioners are consequently seeking a writ of mandamus restraining the State of Rajasthan and the Deputy Secretary-cum-Labour Commissioner of the State of Rajasthan, respondents 2 and 3 respectively, from enforcing the impugned provisions against the petitioners. 209. The first petitioner, M/s J.K. Synthetics Ltd. is a public limited Company governed by the Companies Act, 1956, and Sita Ram Singhania (petit inner 2) who is a citizen of India, is the President and a share-holder of this company. S. P. Aggarwal, the Executive Director of this company, has been impleaded as a proforma respondent. 209. The first petitioner, M/s J.K. Synthetics Ltd. is a public limited Company governed by the Companies Act, 1956, and Sita Ram Singhania (petit inner 2) who is a citizen of India, is the President and a share-holder of this company. S. P. Aggarwal, the Executive Director of this company, has been impleaded as a proforma respondent. M/s J. K. Synthetics Ltd., which will here-in-after be referred to as the petitioner, is engaged in the manufacture of nylon/polyester filament yarns, nylon tyer cord, polyester fibre and acrylic fiber at Kota. 'fill January 15. 1983, it had in its a employment workmen numbering 3375, 660, 703 and 527 working respectively in the Nylon plant, Tyre Cord Plant, Synthetic Stable Fibre Plant and Acrylic Fibre Plant Between January 15 and 31, the petitioner retrenched as many as 2367 workmen for the reasons, as it put it, "owing to certain economic compulsions and as a result of detailed study." The plant-wise break-up of workmen thus retrenched is as under:- Name of plant/Division No. of workmen retrenched. i. a. Nylon Plant/Division (engaged in Flat/POY/MOY yarn processes) 712 b. Nylon Plant/Division (Engaged in crimping and other process 1166 ii. Tyre Cord Plant/Division 143 iii. Synthetic Stable Fibre Plant/Division 251 iv. Acrylic Plant/Division 90 210. Before retrenching these workmen, the petitioner tendered to each workman three months' wages in lieu of notice, retrenchment compensation calculated at the rate of half month's pay for etch completed year of service, and all other legal dues payable to him. Notice of retrenchment in the prescribed form was sent to the State Government within seven days of the date of retrenchment in respect of each workmen. 211. The Rajasthan Trade Union Kendra, a confederation of various trade unions, said to be affiliated with the petitioner filed a writ petition (writ petition No. 213 of 1983) in this Court ort January 27, 983, challenging the validity of the aforementioned retrenchments on the averments that the petitioner had brought them about without complying with the conditions precedent as laid down in section 23-N. Industrial Disputes Act, 1947 (herein- after called the Act) and rule 76. Rajasthan in Industrial Disputes Rules. Rajasthan in Industrial Disputes Rules. Earlier on, January 25, 1983, the Labour Commissioner-cum-Deputy Secretary to Government of Rajasthan wrote to the Executive Director of the petitioner (vide Exhibit A) requiring the latter to appear before him on January 31, 1983, and explain inter alia why the retrenchments in question had been made without giving notice to the Government, as required by section 25-N ( 1)(C). and without obtaining the prior permission of the Government in accordance with the provisions of section 25-N (2) of the act. The petitioner sent its reply (Exhibit B) to the Deputy Secretary to Government on February 1, 1983. The Government was apparently not satisfied with the explanation rendered by the petitioner. There fore, the Deputy Secretary to the Government issued a notice (Exhibit C). dated February 19, 1983, to Sita Ram Singhania (petitioner 2) and S.P. Agarwal (respondent 4) alleging that the petitioner had retrenched its workmen "on mass; scale and without valid grounds and in violation" of the provisions of section; 25-N (1) (C) of the Act and of the rules framed thereunder, and requiring the addressees to show cause as to why they should not he prosecuted for contravention.of the provisions of section 25-N (I) which is an offence punishable under section 25Q of the Act. 212. These pressures, brought to bear upon theta by the Rajasthan Trade Union Kendra and the Government, did not. according to the petitioner, leave any alternative with it but to approach this Court for the relief of declaration that sections 25-N and 25-Q of the Act arc unconstitutional, illegal and void, and for a writ of mandamus restraining respondents 2 and 3 from enforcing the impugned sections and taking any action against time petitioners and its officers for their alleged contravention by them. 213. It cannot be seriously disputed that the provisions of sections 25-N and 25-Q I am not mentioning section 25-M with which we are not concerned in the present case) definitely impose fetters on the exercise of the fundamental tight to tarry on business guaranteed by Article 19 (1) (g) of the Constitution. The only question is whether these legislative restrictions are permissible under clause 6 of' Article 19. Clause (6) in so far as it is material for our present purpose reads: 6. Nothing in sub-clause (g) of the said clause shall ... The only question is whether these legislative restrictions are permissible under clause 6 of' Article 19. Clause (6) in so far as it is material for our present purpose reads: 6. Nothing in sub-clause (g) of the said clause shall ... prevent the State from making any law imposing in the interest of the general public, reasonable restrictrictions on the exercise of the right conferred by the said sub-clause. It will be seen that this clause permits imposition of reasonable restrictions in the interest of the general public, on the exercise of the fundamental right to carry on business. We are therefore called upon to decide whether the legislative restrictions contained in sections 25-N and 25-Q on the exercise of the fundamental right to carry on business are reasonable or not. If they are reasonable, Section 25-N and 25-Q are constitutionally valid, and, if they are unreasonable sections 25-N and 25-Q must necessarily be void and of no effect in law. 214. Before going into the reasonableness or otherwise of the impugned restrictive provisions I may refer here to a few Supreme Court ruling; which will be helpful in a correct understanding and appreciation of the problem in hand. In the very first year of the Republic, the Supreme Court had occasion to define the scope of judicial review of legislation in the context of clause (5) of Article 19 which provides for the imposition of reasonable restrictions on the exercise of the fundamental right under Article 19 (1) (d) to move freely throughout the territory of India. The case is reported in (16) N.B. Khare v. State of Delhi. AIR 1950 SC 211 . The petitioner, N. B. Khare, in that case had been served with an order made by the District Magistrate Delhi under the East Punjab Public Safety Act, 1949 (hereinafter called the Safety Act), directing the petitioner to remove himself from the Delhi District and not to return to the District. The order was to continue in force for three months. The petitioner disputed the validity of the order on the ground that the Safety Act under which the order was made infringed his fundamental right under Article 19 (1) (d) of the Constitution. Obviously, the order of exterment abridged the fundamental right of the petitioner to move freely throughout the territory of India. The petitioner disputed the validity of the order on the ground that the Safety Act under which the order was made infringed his fundamental right under Article 19 (1) (d) of the Constitution. Obviously, the order of exterment abridged the fundamental right of the petitioner to move freely throughout the territory of India. The question for determination before the Supreme Court was whether the Safety Act under which the externment order was made is protected by clause (5) of Article 19 which permitted imposition of reasonable restrictions on the exercise of the right conferred by Article 19 (1) (d). The majority consisting of Kania C.J., Fazl Ali and Patanjali Sastri, JJ dismissed the petition on the view that the Safety Act contained reasonable restrictions on the exercise of the right given under Article 19(1) (d). The minority consisting of Mahajan and Mukherjee, JJ. were of the view that the impugned provisions of the Safety Act were void because they impugned unreasonable restrictions on the petitioner's right to move freely throughout the territory of India. It is however significant to note that four out of the five judges adopted a common approach to the problem of judicial review inasmuch as Kania. C.J. and Fazl Ali, J. in the majority judgment with the result of which Patanjali Sastri, J. agreed, and Mahajan and Mukherjee. JJ. in the minority judgment expressed the view that the determination of the question as to whether the restrictions imposed by a legislative enactment upon the fundamental right of a citizen enunciated in Article 19(1) (d) are reasonable or not within the purview of clause (5) of the Article would depend as much upon the procedural part of the law as upon its substantive part. We may quote here with advantage from both the majority and the minority judgments. Kania, C.J., who delivered the majority judgment, laid down: Similarly, Mukherjee, J. speaking for the minority, observed : 215. Another Constitution Bench consisting of five judges reiterated the same view in Gurbachan Singh v. State of Bombay, AIR 1952 SC 221 , inasmuch as their Lordships held that the Court has to determine the constitutionality of legislative restriction imposed upon the exercise of a fundamental right both from the substantive and procedural aspects. Another Constitution Bench consisting of five judges reiterated the same view in Gurbachan Singh v. State of Bombay, AIR 1952 SC 221 , inasmuch as their Lordships held that the Court has to determine the constitutionality of legislative restriction imposed upon the exercise of a fundamental right both from the substantive and procedural aspects. In another case The State of Madras v. V. G. Row, AIR 1962 SC 196 , decided earlier by the same Constitution Bench in 1952, Patanjali Sastri CJ. who had refrained from expressing any opinion on the scope of judicial review in the context of clause (5) of Article 19 in the Khare care (supra) delivered the judgment for the Constitution Bench. His Lordship adopted the same approach as had been adopted by the four judges in the Khare case and, while explaining the ratio of that case, observed:- 216. The principles, which clearly emerge from the three rulings of the Supreme Court, as discussed above and which must therefore govern the approach of this Court to the adjudication of the issue in hand may he enumerated as follows : (i) In order to determine the reasonableness of a restriction imposed upon the exercise of a fundamental right under Article 19, the Court must examine the impugned restrictive legislation not only in its substantive part, but also in its procedural part. (ii) In determining the substantive reasonableness of such legislation, the Court must examine the contents of the restrictions imposed. In the process of examination of a restrictive law from the standpoint of substantive reasonableness, the Court may have to, and quite often does, cut across into the area of examination pertaining to proceural reasonableness for as Mukherjee J. said in the Khare case, "one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice". A restrictive law which arbitrarily or excessively infringes a fundamental right is not reasonable. (iii) In considering the substantive reasonableness of a restrictive law the Court trust judge it in the light of actual facts like ; (a) the nature of the right alleged to have been infringed, (b) the under- lying purpose of the restrictions imposed (c) the extent and urgency of the evil sought to be remedied thereby (d) the disproportion of the imposition and (c) the prevailing condition at the time. (iv) Even if a restriction is reasonable in substance it may be unreasonable in the manner and procedure of imposition. In determining the procedural reasonableness of the impugned legislation, the Court considers for example as to whether it empowers an executive authority to impose it restriction on the exercise of a fundamental right on the basis of the authority's subjective or objective satisfaction. The law which empowers the executive authority to abridge a fundamental right on subjective satisfaction is prima facie unreasonable from the procedural standpoint. 217. I may now proceed to examine the provisions of section 25-N and 25-Q of the Act in the light of the principles stated above and then find out as to whether they contain reasonable or unreasonable restrictions on the exercise of the petitioner's fundamental right to carry on business as guaranteed by Article 19 (1) (g) of the Constitution. For convenience of reference, I may reproduce here the material and relevant portions of sections 25-N and 25-Q:- 25-N. Conditions precedent to retrenchment of workmen : 25-Q Panalties 218. It will be seen on a perusal of these two sections that the provisions contained therein are undoubtedly restrictive of the petitioners' fundamental right under Article 19(1) (g) of the Constitution to early on business. Section 25-N, as its marginal note itself shows, lays down conditions precedent which must be complied with by an employer who is desirous of retrenching a workman who has been in continuous service for not less than one year. One of the conditions precedent with which we are concerned in the instant case enjoins that no such workmen as mentioned above shall be retrenched until notice in the prescribed form is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette and the permission of such Government or authority is obtained. Section 25-Q provides for punishment to an employer who retrenches a workman without obtaining such permission. Such retrenchment is an offence punishable with imprisonment or fine or both. In addition, the retrenchment shall be deemed to be illegal with all the onerous consequences for the employer. 219. Section 25-Q provides for punishment to an employer who retrenches a workman without obtaining such permission. Such retrenchment is an offence punishable with imprisonment or fine or both. In addition, the retrenchment shall be deemed to be illegal with all the onerous consequences for the employer. 219. The crucial point for determination in this case is whether these legislative restrictions on the exercise of the petitioner's fundamental right to carry on business can be justified as "reasonable restrictions" imposed in the interest of the general public within the ambit of clause (6) of Article 19. Examining these restrictions on the touchstone of the four principles gathered from the dicta of the Supreme Court and enumerated in an earlier part of this judgment, I find that both in their content as well as in the manner of their imposition, these restrictions are reasonable and valid under Article 19 of the Constitution. Reasons for this opinion may be given as follows. 220. Let us first examine the contents of the restrictions imposed. As already noticed, clause (c) of section 25-1 (I) lays down that no workman shall be retrenched by the employer without obtaining permission of the appropriate Government or the authority specified by such Government. This restriction roust be viewed in the context of various provisions of the Act, Section 25-N itself lays down that in addition to prior permission for retrenchment, there are two other conditions precedent for such retrenchment, namely, (a) the employer must give the workman concerned three months' notice in writing indicating the reasons for retrenchment and must wait for three months before he may actually retrench him, or else pay the workman wages for three months in lieu of notice. and (b) pay the workman, at the time of retrenchment compensation at the rate of 15 days wages for every completed year of continuous service. The petitioner in the instant case professes to have complied with both (a) and (b) inasmuch as he claims to have tendered to each workman, at the time of ietrenchment three months' wages in lieu of notice and retrenchment compensation calculated at the rate of half month's wages for each completed year of service and all ether legal dues payable to him. The only contravention of section 25-N. involved in the impugned retrenchments consists of the failure of the petitioner to apply for and obtain permission of the State Government for such retrenchments. It is in this back-ground that the Court is called upon to adjudge the reasonableness of the restriction as to making in application for permission to retrench and obtaining such permission as a condition precedent of valid retrenchment. On the lace of it, no unreasonableness can be seen in the requirement enjoining the making of an application for permission to retrench and waiting for a period of 3 months before ordering retrenchment. An employer who gives a three months' notice of retrenchment or pays three months wages in lieu of notice cannot be heard complaining that the requirement of making an application for retrenchment and waiting for permission for three months is too onerous or unreasonable for him to comply. If he can afford to pay three months wages in lieu of notice and all other dues payable to the workman rightaway, he might as well wait for three months and in the meantime take advantage of the services of the 'workman. 221. Mr. Nariman, learned counsel for the petitioner argued that the requirement regarding the making of an application for permission and waiting for the decision of the appropriate Government for three months may not be per se unreasonable, but the provision; of sub-section 6 of section 25 to the collect that where no application for permission under clause (C) of sub- section (1) is made or where permission for retrenchment has been refused, such retrenchment shall be deemed to be illegal front the date oil which notice of retrenchment was given to the workman and the workman shall be entitled to all benefits under any law for the time being in force as if no notice had been given to line, is highly arbitrary and excessively harsh. Mr Nariman went a suit further mil argued lit it since such retrenchment I shall be deemed to be illegal"? no scope is left by the legislature for any adjudication by an Industrial Tribunal appointed under the Act in respect of the validity of such retrenchment. 222. On a careful consideration of all these submissions, I am of opinion that they are devoid of force For one thing. no scope is left by the legislature for any adjudication by an Industrial Tribunal appointed under the Act in respect of the validity of such retrenchment. 222. On a careful consideration of all these submissions, I am of opinion that they are devoid of force For one thing. the court cannot strike demo the, requirement regal ding the making of an application for permission to retrench merely on the ground that in the event of refusal to grant such permission, the retrenchment shall be deemed to be illegal. Why should the Court presume that the authority concerned shall refuse permission arbitrarily ? Reference may here be made to principle No. (ii) stated in paragraph 8 of this judgment wherein it is mentioned that in the process of examination of a restrictive law from the stand point of substantive reasonableness, the Court cannot dissociate the contents of the restriction from the manner of their imposition or the mode of putting them into practice and that therefore while determining the substantive reasonableness, the Court is perforce led to the examination of the procedural reasonable- ness of the law. If one refers to the procedural aspect of the impugned provisions, as I am going to do a little later-, it will be seen that the authority combined is required to hold an enquiry into The matter which mean,; it must hear both parries (i.e.. the employer and the workmen be for arriving at its decision either way on the employer's application. The legislature has provided an added safeguard in that the authority concerned must record its reasons in writing for grant or refusal of such permission. In other words, the authority concerned is requires to decide the employer's application in a quasi judicial manner by tire application of some objective standard other than its subjective satisfaction, and thus its decision can be tested by the Court or the Industrial Tribunal by the application of the same objective standard. 223. In other words, the authority concerned is requires to decide the employer's application in a quasi judicial manner by tire application of some objective standard other than its subjective satisfaction, and thus its decision can be tested by the Court or the Industrial Tribunal by the application of the same objective standard. 223. For another thing, the mere fact that the legislature has declared that a retrenchment effected notwithstanding the fact that permission for such retrenchment has been refused, shall be deemed to be illegal, is no ground for holding that the legislature has thereby foreclosed the employer aggrieved by refusal of permission and consequent deemed illegdity of the retrenchment, from raising an industrial dispute claiming that the permission to retrench had been arbitrarily refused by the executive authority concerned and that therefore the intrenchment cannot be deemed to be illegal. Where is nothing in the provisions of section 25-N or any- where rise in the body of the Act victim. It could possibly bar the making of a reference under section 10 of the Act for adjudging the validity of such refusal and for that matter the validity of the retrenchment itself. On the contray, if the Act is read as a whole it would be abundantly clear that there is ample scope in the Act for raising an industrial dispute of the nature adverted to above and causing it to be referred for industrial adjudication under section 10. As the Supreme Court has repeatedly pointed out (see for example the judgments of the Constitution Benches in Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union. 1957 (I) LLJ 235 , Barsi Light Railway Co. Ltd v. K M. Jeolikar. 1957 (I) LLJ) 243 . and Anakappala Cooperative Agricultural and Industrial Society v. Its Workmen, 1962 LL J 621, retrenchment means discharge of surplus labour and labour may become surplus for a variety of reasons, including - economic compulsion" which, according to the petitioner, led it to take recourse to this measure. It is now an accepted proposition of industrial jurisprudence (see Workmen of S.T. Estate v. S.T. Estate. It is now an accepted proposition of industrial jurisprudence (see Workmen of S.T. Estate v. S.T. Estate. (AIR 1967 Supreme Court 420) that it is for the employer to decide the strength for his labour force and if he finds on the grounds of rationalisation or on the ground of economy reasonable and bona fide adopted that the number of workmen is supports, it would be open to him to retrench them. Their Lordships. however, hastened to add in this context that if a dispute arises as to the justification of such retrenchment, it would be necessary for industrial adjudication to consider whether the impugned retrenchment was justified or not. I am referring to this ruling here with a view to showing that rationalisation and economic reason, may lead an employer to take recourse to retrenchment. Now, if we read section 9-A along with items 10 and 11 of the fourth Schedule of the Act it will be seen that an employer, like the petitioner in the instant case, who is desirous of retrenching workmen rendered surplus due to rationalisation, standardisation or improvement of plant or technique or an employer who wishes to reduce the number of persons employed in any process otherwise than under circumstances over which he has no control, cannot bring about such rationalisation and reduction without giving the workmen concerned a notice in the prescribed forth and before the expiry of twenty one days from the date of giving such notice. If such notice is given, which it has to be mandatorily given under law, the workmen concerned may themselves raise an industrial dispute claiming that the proposed retrenchment and reduction is malafide and capricious. In that event, it would be open to the employer to, justify the proposed rationalisation. retrenchment and reduction before the Industrial Tribunal. If he succeeds it obtaining an award from the Industrial Tribunal in his favour, the grant of permission by the authority concerned under clause (c) of section 25-N (1) for such retrenchment may be taken for granted by him. One may however not rule out the possiblility of an executive authority refusing such permission. In that event the court will have before it enough material including the award on the basis of which it now test the validity of such refusal. One may however not rule out the possiblility of an executive authority refusing such permission. In that event the court will have before it enough material including the award on the basis of which it now test the validity of such refusal. We may also consider the possibility of the workmen not raising an industrial dispute in response to a notice under section 9-A. In such a situation the employer would be free to and recourse to retrenchment, but if his is an industrial establishment to which Chapter V-B of the Act applies he would be able to retrench the surplus labour force only after compliance with the provisions on section 25-N. one of the condition precedent prescribed by section 25-N is that he must apply and obtain permission of the executive authority concerned for such retrenchment. If he had ahead' served notice on the workmen under section 9 A and the workmen had not cared to dispute that notice, the executive authority may not have much difficulty in granting permission for the retrenchment proposed. It is also possible that the executive authority concerned may still refuse such permission. In that event, the court or the Industrial Tribunal, as the case may be, will again have enough material before it to test the validity of the refusal. 224. Let its now examine the contents of the impugned law on the touch stone of the underlying purpose of The restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, disproportion of the imposition and the prevailing condition at the rim of imposition. 225. The undertaking purpose of the impugned restrictive law and the evil sought to be remedied thereby can best be ascertained from the statement of Objects and Reasons for Bill N r. XVI of 1956. whereby Chapter V-B, with the heading "Social provisions Relating to Lay-Off Retrenchment And Closure In Certain Establishments" was added and enacted into the Act. The statement of Objects and Reasons reads as follows : 226. It will thus he seen from the above statement of Objects and Reasons for the enactment of Chapter V-B of the Act, containing inter alia sections 25-N and 25-Q that the legislature was confronted with the problem of large scale retrenchment, lay-off and closures which were causing all-round demoralising effect on the workmen and consequently harming production and productivity in the country. In order to combat this evil, the Legislature amended the Act by enacting provisions making prior approval of the appropriate Government necessary in case of lay-off, retrenchment and closure in industrial establishments where 300 or more workmen are employed. As Disputed snit by the Supreme Court in State of Bihar v. Rameshwar Singh AIR 1952 SC 252 . the Legislature is the best judge of what is good for the community by whose sufferage it comes into existence. The Legislature could make its own choice of the means for combating the evil, and the choice made is to make the prior approval of the Government necessary in case of retrenchment in big industrial establishments employing 300 or more Workmen. The restrictions imposed by section 25-N and 25 Q have a rational relation to the object which tire Legislature seeks to achieve. The restriction enjoining the proper approval of the Government as a condition precedent for retrenchment cannot be described as excessive. 227. In Jyoti Prashad v. Union Territory of Delhi, AIR 1961 Sc 1602 , the Supreme Court held that even if a statute does not in terms lay down any rules for the guidance of the executive authority charged with the duty of deciding a matter effecting the exercise of a fundamental right guaranteed under Article 19, The authority concerned may seek the necessary guidance from the policy and purpose of the Act as set out in the preamble and in the operative provisions of the Act. As its pre-amble would show, the Act was enacted to make provisions for the investigation and settlement of industrial disputes. O.P. Malhotra, an eminent jurist in the field of labour law, rightly observes (see Malhotra's Law of Industrial Disputes, Third Edition, Volume I, Page 3) in his classic commentaries that the emergence of the welfare State in our Republic implies an end to exploitation of workmen, that the Act was enacted to provide machinery for settlement of industrial disputes so as to ensure peace and harmony in the industry and that the need for State intervention permeates the Act in its broad outlines. The emphasis is not so much on laying down categorically the mutual rights and liabilities of employers and employees as on providing mechinary for the settlement of disputes in the interest on maintenance of peaceful relations between employers and employees. The emphasis is not so much on laying down categorically the mutual rights and liabilities of employers and employees as on providing mechinary for the settlement of disputes in the interest on maintenance of peaceful relations between employers and employees. It was therefore considered inexpedient and indeed unnecessary to lay down rules governing the giant or refusal of permission for retrenchment. In the very nature of things, some discretion, of course guided by the policy and purpose of the Act, had to be left with the appropriate Government to meet the exigencies of different situation in different industries from time to time. 228. As early as 1958, the Supreme Court pointed out in H.H. Qureshi v. State of Bihar, AIR 1958 SC 731 , that the Directive Principles of State Policy as enshrined in Part IV of our Constitution must be considered in the matter of construction of statutes providing for restrictions on the exercise of a fundamental right to adjudge the reasonableness or otherwise of such restrictions. Articles 38, 39, 41, 42, 43 and 43-A would clearly bring out the concern of the Constituent Assembly for workers and their welfare. Article 38 enjoins the State to strive for the social welfare of the people, ensuring a social order in which justice. social, economic and political shall inform all the institutions of national life Article 41 directs the State to make effective provisions for securing the right to work. Retrenchment is the very anti-thesis of The right to work. Article 43-A requires the State to take steps by suitable legislation or in any other way to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry. Basing itself on the Directive Principles of State policy, especially Article 43-A, the Supreme Court observed in a recent case Hindustan Tin Works Ltd. v. Its Employees (1978-11 LI,J 474) that the Act seeks to achieve social justice on the basis of collective bargaining, conciliation, arbitration and adjudication, and that the labour and capital should be treated as partners in the industry. 229. There are thus enough guidelines available from the policy, purpose and provisions of the Act, Directive Principles of State Policy and the industrial jurisprudence evolved by the Supreme Court over a period of 33 years on the question as to under what circumstances retrenchment may or may not be justified. 229. There are thus enough guidelines available from the policy, purpose and provisions of the Act, Directive Principles of State Policy and the industrial jurisprudence evolved by the Supreme Court over a period of 33 years on the question as to under what circumstances retrenchment may or may not be justified. Some of the guidelines which are well recognised by now may be stated as follows:- 1. It is for the management to decide the strength of its labour force, but no rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen can be made without notice to the workmen concerned. This means the workmen have a right to be heard in this matter and influence the decision through the mechanics of collective bargaining, conciliation, enquiry, arbitration and adjudication in accordance with the provision of the Act. 2. The management may retrench workmen who are found surplus on the grounds of economy adopted reasonably and bonafide, and not as an unfair labour practice. 3. Rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment and reduction in the number of persons employed in any process or department is permissible if it becomes unavoidable in the interest of all concerned. that is, of the management, the labour and production in the industry. The State has power to withhold permission for retrenchment if it is of opinion that on a balance of these three interests, the retrenchment proposed can he avoided. Any retrenchment which is fraught with the danger of creating industrial unrest and consequent friction between the employer and work- men generally, but which can be avoided without imposing an unbearable burden on the employer is considered to be an avoided retrenchment. 4. Retrenchment based on caprice, whim or adopted for ulterior and malafide motives is void. These guidelines are exfacie general in nature. They are not and could not be definitive and comprehensive to cover all situations. In the very nature of things, the legislature could not have possibly defined the circumstances, situations, and times in which and when permission for retrenchment may be granted or refused. These guidelines are exfacie general in nature. They are not and could not be definitive and comprehensive to cover all situations. In the very nature of things, the legislature could not have possibly defined the circumstances, situations, and times in which and when permission for retrenchment may be granted or refused. The best that could be done under the circumstances has been done by providing for an enquiry by the appropriate Government and requiring it to give reasons in writing for the grant or refusal, as the case may be of permission for retrenchment. No scop is thus left for any it itrary or subjective decision. 230. I may now examine the impugned restrictions in their' procedural aspect Sub-sections 1(c), 2. 3 of section 25-N of the Act deal with the procedure of granting or refusing permission for retrenchment. These sub-sections have already been reproduced in an earlier part of this judgment. It will be seen that sub-section 1(c) requires the employer to make all application in the prescribed in manner to the appropriate Government for permission to retrench a workman. Sub-section(2)charges the appropriate Government or the authority specified by it to hold an enquiry into the matter. Now, the requirement of enquiry necessarily means the hearing of the parties concerned, i. e. the manage agent and the workmen concerned. The management seeking permission for retrenchment will have to satisfy the authority that the proposed retrenchments is justified. The workmen, who may be opposing the grant of permission. will have to satisfy the authority that the proposed retrenchment is not justified. After hearing both sides, the authority concerned may grant or refuse the permission applied for. It must however, record its reasons in writing for grant or refusal of permission for retrenchment. As already pointed out. this is a very fair procedure from the stand point of both the parties. Any arbitrary grant or refusal of permission can always he challenged by raising an industrial dispute and causing it to be referred for adjudication by an Industrial Tribunal appointed under the Act 231. As already pointed out. this is a very fair procedure from the stand point of both the parties. Any arbitrary grant or refusal of permission can always he challenged by raising an industrial dispute and causing it to be referred for adjudication by an Industrial Tribunal appointed under the Act 231. Sub-section 3 is also important inasmuch as it lays down that if the authority concerned holding the enquiry does not communicate its decision on the application made to it under sub-section l(c) within three months of the date of making the application, the authority shall be deemed to have granted permission for the retrenchment applied for on the expiration of the said period of three months. This sub-section his been enacted for the benefit of the employer inasmuch as the authority concerned is not allowed to sit over the matter indefinitely and he must decide either way within a period of three mouths. This outer limit of three months for a decision on the application under section 25-N(1) (c) is eminently fair and just from any article. It will be seen that even otherwise the employer is required under section 25-N (1) (a) to give the workman concerned a three month's notice ill writing as it condition precedent of his retrenchment. If an employer were to simultaneously apply for permission to retrench him, he could be sure of obtaining the decision of the authority concerned, or failing that, the deemed permission, conterminous with the expiry of the period of notice under section 25-N (1) (a). 232. This procedure cannot by any means he described as unreasonable from the stand point of the employer. M/s. Nariman, however. cited M/s Dwarka Prasad v. State of Uttar Pradesh, AIR 1954 SC 224 , in support of his argument that even if the restrictive legislation lays down tie procedure requiring the authority concerned to record reasons for its decision involving abridgement of the fundamental right of a citizen to carry on business, it will not save the restriction from the vice of unreasonableness unless the legislature also provides for appeal etc. to statue (righter authority who could examine the propriety of the reasons and revise or review the decision of the subordinate officer. to statue (righter authority who could examine the propriety of the reasons and revise or review the decision of the subordinate officer. He submitted that no appeal or revision is provided in the Act from the decision of the authority concerned under section 25-N(2) and that therefore the requirement of recording reasons in writing is of no use, for there is no higher authority appointed under the Act which could test the validity of those reasons.I have very carefully studied the cited ruling and am of opinion that it has no application to the facts of this case. In a subsequent case (see Virendra v. State of Punjab, AIR 1957 SC. 896 ) their Lordships themselves distinguished the cited case stating that the ratio decidendi in the cited case was that since there was nothing in the Uttar Pradesh Coal Control Order, 1953, indicating the purpose for which and the circumstances under which the licensing authority could grant or refuse to grant, renew or refuse to renew or suspend, revoke, cancel or modify any license under that Order, therefore clause 4(3) of the Order which conferred such arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities cannot but be held to be unreasonable. Their Lordships reiterated the law as laid down in Harishanker Bagla v. State of Madhya Pradesh, AIR 1954 SC 465 , holding that the dictum in Dwarka Prasad's case can have no application to a law which sets out its underlying policy so that the order to be made under the law is to be governed by that policy and the discretion given to the authority is to be exercised to effectuate that policy. I have already explained that the policy, purposes and provisions of the Act read in the light of Directive Principles of state policy and the pronouncements of the Supreme Court from time to time during the last 33 years of our Republic, contain enough guidelines for the authority concerned charged with the duty to decide the question as to whether or not to grant permission for retrenchment under Section 25-N(2) of the Act. Dwarka Prasad's case therefore has no application to the facts of this case. Dwarka Prasad's case therefore has no application to the facts of this case. The mere fact that the impugned legislation does not provide for an appeal or revision from the decision of the authority under section 25-N(2) to a higher authority cannot, by that token alone, render the legislation unreasonable. 233. Another case in which the Supreme Court distinguished Dwarka Prasad's case is reported in (18) C. Lingam v. Government of India, AIR 1971 S.C. 474 . Their Lordships, ruled that mere absence of a provision of appeal cannot render a restrictive legislation unreasonable. It will be useful to reproduce here the observations of their Lordships rejecting a similar argument as was raised in the instant case by counsel for the petitioner. "Their Lordships held : In these circumstances the absence of a provision for appeal or revision can be of no consequence. At any rate, it has been pointed out in more than one decision of this Court that when the power had to be exercised by one of the highest officers the fact that no appeal has been provided for is a matter of no moment. As already explained, the absence of a provision for appeal or revision from the order of the authority concerned refusing or granting permission under Section 25N is of no consequence in the context of the Act. The Act is a self-contained code dealing with the investigation and settlement of industrial disputes. If the authority concerned arbitrarily refuses or grant permission for retrenchment, such arbitrary refusal or grant is vulnerable to judicial review. Reference may be made in this context to Electro Steel Castings Ltd. v. The State of West Bengal. 1978 Lib. I.C 1570 , and Workmen of Mukand Iron & Steel Works Ltd. v. Mukand Iron and Steel Works Ltd & Ors, 1982-I LLJ 140 . Alternatively, the aggrieved party may raise an industrial dispute over this issue and cause it to be referred for industrial adjudication. In this scheme of things as ordained by the Act, there was no room and indeed no necessity for providing an appeal from an order of refusal or grant of permission for retrenchment under section 25-N. 234. Another authority reported in Excel Wear v. Union of India, A.I.R. 1979 SC 25 , cited by Mr. Nariman. has also no application to the facts of this case. Another authority reported in Excel Wear v. Union of India, A.I.R. 1979 SC 25 , cited by Mr. Nariman. has also no application to the facts of this case. It will be seen that their Lordships of the Supreme Court struck down in the cited case the provisions of section 25-O of the Act on the ground of unreasonableness of the restrictions imposed on the freedom of trade and business guaranteed under Article 19 (1) (g) of the Constitution Section 25-0 which was thus struck down and section 25-N which is now under challenge are entirely different both in the contents of the respective restrictions imposed thereby and the procedure or manner of their imposition. Refusal of permission to close down a business means, in effect, that a citizen is compelled to keep running an industrial establishment which he finds impossible or beyond his power to run. This is a complete destruction of his fundamental freedom to close down the business. There is no such complete destruction of a fundamental freedom if a citizen desirous of retrenching a few workmen is refused permission for such retrenchment. As for the procedure or manner of imposition of the restriction on the fundamental freedom of a citizen to close down his business unreasonableness of the said procedure is writ large on sub-section 2 of section 25-O dealing with the procedure. Let us read sub-section 2 here:- 25-0(1) ............... 2. On receipt of a notice under sub-section 1 the appropriate Government may, if it is satisfied that the reasons for the intended closure of the undertaking are not adequate and sufficient for such closure is pre- judicial to the public interest by order direct the employer not to close down the undertaking. Their Lordships struck down section 25-O mainly on the ground that it empowered the authority concerned to refuse permission for closure whimsically and capriciously. This conclusion was arrived at on the basis of the particular language of the procedural clause reproduced above which is, on the face of it, absurd. As their Lordships pointed out, though the reasons given for closure may be correct, the authority concerned may hold that they are not "adequate and sufficient" and refuse permission for closure. This conclusion was arrived at on the basis of the particular language of the procedural clause reproduced above which is, on the face of it, absurd. As their Lordships pointed out, though the reasons given for closure may be correct, the authority concerned may hold that they are not "adequate and sufficient" and refuse permission for closure. They further observed that even if the reasons are correct, adequate and sufficient, the said authority may still refuse permission for closure stating that such closure is prejudicial to the public interest. Their Lordships demonstrated the absurdity and unworkability of the clause by stating that if a management finds it difficult to continue the business without danger to their lives and if they are running into losses year after year, the authority concerned is given the power to refuse permission for closure stating that the reasons are not "adequate and sufficient" notwithstanding the fact that lie finds them to be correct. They further underscored the absurdity by pointing out that even if the reasons are found to be correct, adequate and sufficient, he may still refuse permission for closure stating that the proposed (Insure is prejudicial to the public interest. Section 25-N (2) which contains procedure for the grant or refusal of permission for retrenchment only on the basis of an enquiry, which means hearing both sides, and then reasons for grant or refusal of permission must also be recorded in writing. There is thus no scope for a whimsical and capricious decision under section 25-N. 235. As for the Madras decision ( Gurumurthy v. Sumpson and Co. Madras and others, 1981 II LLJ 360 ) cited by Mr. Nariman, all I have to say. and I say it with respect, is that the reasoning in this judgment is not sound. I prefer the reasoning of the Andhra Pradesh High Court in General Industrial Society Ltd v. Commissioner of Labour & the Authority u/s 25 M of the Industrial Disputes Act (1980. (1) Andhra Weekly Reporter. 92) . 236. In conclusion. I hold that sections 25-N and 25-Q of the Act are constitutionally valid and that therefore this writ petition deserves to be dismissed. I would dismiss it leaving the parties to bear their own costs. *******