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Madhya Pradesh High Court · body

2003 DIGILAW 341 (MP)

M. I. S. C. Karamchari Sangh v. State of M. P.

2003-02-27

RAJENDRA MENON

body2003
ORDER 1. Petitioner a Union of the employees in the respondent No.3 Organisation by the present petition has called in question tenability of the order dated 27.1.2000 Annexure P-l passed by the respondent State under the provisions of section 25-O of the Industrial Disputes Act, 1947. 2. Even though various grounds have been urged in the present petition impugning the aforesaid order, respondent employer have filed a preliminary objection with regard to maintainability of the petition and it is contended that in view of the provisions of sub-section (6) of section 25-O as applicable in the State of Madhya Pradesh, the petitioner should first approach the State Government for review of the order impugned. Accordingly, it is submitted that petition at this stage is not maintainable. By filing a detailed return on merits also, respondents have opposed the petition. 3. Initially, the matter was heard at length and on 7.10.2002 the case was closed for orders. However, while going through the records this Court observed that certain review proceedings under sub-sections (4) and (6) of section 25 were pending before the State Government. Considering the same and in view of the preliminary objection, respondent No. 1 and 2 were directed to file a counter affidavit indicating the action taken on the review application and the orders passed thereof. In pursuance to the aforesaid order an additional affidavit has been filed on 2.1.2003 by the State Government. In the said affidavit it is indicated that against the order dated 27.1.2000 Annexure P-l impugned in the present petition, one of the Union namely the ISC (CITU) Sangh had filed a review application on 16.2.2000, the said application was taken up for hearing on 1.3.2000 and 14.3.2000 when on 14.3.2000 the present petitioners filed an order dated 29.2.2000 passed in this petition and therefore the Principal Secretary, Labour Department who was hearing the review application had kept the matter pending. Thereafter, the review application was fixed for hearing on 24.4.2000 and 30.6.2000 but thereafter no hearing was taken place. It is submitted that because of the pendency of the petition no final orders on the review application have been passed. 4. Thereafter, the review application was fixed for hearing on 24.4.2000 and 30.6.2000 but thereafter no hearing was taken place. It is submitted that because of the pendency of the petition no final orders on the review application have been passed. 4. In view of the aforesaid position, before entering into the merits of the case, the question which has to be considered by this Court is as to whether the present petition should be decided on merits or the respondent State should be permitted to consider the review application and decide the same. 5. Section 25-O of the Industrial Disputes Act, 1947 applicable in the State of Madhya Pradesh reads 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 apply for prior permission at least ninety days before the date on which the intended closure is to become effective, to the State 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 by registered post with acknowledgement due. (2) Where a notice has been served on the State Government by an employer under sub-section (1) of section 25-FFA and the period of notice had not expired on the 5th August, 1983, such employer shal1 not close down the undertaking but shal1, within a period of fifteen days from the said date, apply to the State Government for permission to close down the undertaking. (3) Where an application for permission has been made under sub-section (1) or sub-section (2), the State 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. (4) Where an application has been made under sub-section (1) or sub-section (2), as the case may be, and the State Government does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application in made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days. (5) An order of the State Government granting or refusing to grant permission shall, subject to the provisions of sub-section (6), be final and binding on all the parties and shall remain in force for one year from the date of such order. (6) The State 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 (3) 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. (7) Where no application for permission under sub-section (1) or sub-section (2) 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 down. (8) Notwithstanding anything contained in the foregoing provisions of this section, the State 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 (1) shall not apply in relation to such undertaking for such period as may be specified in the order. (9) Where an undertaking is permitted to be closed down under sub-section (3) or where permission for closure is deemed to be granted under sub-section (4), every workman who is employed in that undertaking immediately before the date of application for permission under this section, shall be entitled to receive 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." -- M.P. Act 32 of 1983, S. 3 (w.e.f.28.10.1983). 6. A perusal of the aforesaid clearly indicates that the State Government under sub-section (6) either at its own motion or on application made by the employer, or any workmen is empowered to review the order granting or refusing permission and further take action for referring the matter to the Tribunal for adjudication. In the facts that have come on record it is clear that the order impugned challenged in the present petition is pending consideration in review before the State Government. The scope of review contemplated under sub-section (6) of section 25-O was considered by a Bench of the Kerala High Court in the case of Laxmi Starch Limited and another v. The Kundara Factory Workers Union and others [1992 (2) Labour Industrial Cases 1337] and in para 17 of the said judgment it has been observed as under: "What is contemplated under section 25-O (6) is not a limited review within the meaning of Order XL VII Rule 1 of the Code of Civil Procedure. What is intended is a reconsideration of the entire matter, including the facts and law omitted while passing the first order as well as new developments that took place after the original order was passed. From the aforesaid it is clear that the scope of review is reconsideration of the entire matter including facts and law and also new developments that took place after the original order is passed. 7. From the records in the present case it is also seen that the order impugned was passed on 27.1.2000 more than 3 years have passed and in the additional affidavits and documents filed by the parties, it has been indicated that most of the employees have received their terminal benefits and their accounts have also been settled. 7. From the records in the present case it is also seen that the order impugned was passed on 27.1.2000 more than 3 years have passed and in the additional affidavits and documents filed by the parties, it has been indicated that most of the employees have received their terminal benefits and their accounts have also been settled. It seems that after passing of the aforesaid order various developments have taken place which have to be taken into consideration for deciding the question with regard to closure of the Establishment. These aspects need factual enquiry and the effect of these subsequent developments are also matters which have to be taken into consideration for deciding the action of the Establishment in closing down the Unit and the subsequently approval accorded by the State Government. 8. Considering the aforesaid aspect of the matter and the subsequent developments that have taken place as is made out from the return and additional return filed by the employer, it is thought appropriate that the matter should be decided by the State Government in the review petition which is pending before it and it would not be appropriate for this Court to consider all these aspects in the present petition. Accordingly, without entering into the merits of the controversy, it is directed that the review petition pending before it shall be proceeded with and decided by the State Government in accordance with law and while considering the same, the petitioner Union shall also be permitted to participate in the proceedings and make their submissions. 9. It is made clear that while considering the review application, subsequent developments that have taken place in the matter shall also be considered by the State Government and then a final decision be taken in accordance with law. Petition is accordingly disposed of with the aforesaid.