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2008 DIGILAW 1340 (BOM)

Navnath Kanha Naik v. United Breweries Ltd.

2008-09-16

NISHITA MHATRE

body2008
P.C. Per Ms. NISHITA MHATRE, J. Rule. By consent of the parties, Rule made returnable forthwith and heard finally. 2. The order challenged in this petition has been passed by the Industrial Court in Complaint (ULP) No. 90/2008 filed by the petitioners. By this order dated May 8, 2008, the Industrial Court has rejected the application for interim relief filed in the complaint. The petitioners had sought a direction against the respondents from removal of the plant and machinery of the factory at Nerul pending the review application filed by them under Section 25-O(5) of the Industrial Disputes Act (for short, hereinafter referred to as 'the Act'). 3. The facts involved in the present Petition are as follows: In 2001, the respondent Company took over the management of Associated Breweries and Distilleries Limited in 2001 which had a manufacturing plant at Nerul. The aforesaid Company was then merged with the respondent Company in 2005. It appears that after the merger, the Chairman of the respondent Company issued a press statement to the effect that an aviation university would be started at the Nerul plant. The respondent Company continued to run the Nerul plant after the merger and made profits according to the petitioners in 2005. Bonus was paid to the workmen @20% in 2006. Profits increased in 2006. In the year 2007 also, the workmen were paid @20%. According to the petitioners, there was a manifold increase in the production at the Nerul plant in 2007. An average wage rise of Rs. 2300/- per month was agreed to be paid to the workmen under a settlement arrived at between Bharatiya Kamgar Sena (for short, 'BKS') and the respondents under Section 2(p) read Section 18(1)(b) of the Act. 4. According to the petitioners immediately thereafter in September 2007, the production activities in the Nerul plant were stopped and the raw material was transferred to 5 other plants belonging to the United Breweries group of Companies. An application was filed on January 3, 2008 by the respondent Company under Section 25-O( 1) of the Act before the appropriate Government for permission to o close down its Nerul plant. On April 2, 2008 the permission was granted to the respondent Company. A copy of that order was made available to the petitioners on February 4, 2008. An application was filed on January 3, 2008 by the respondent Company under Section 25-O( 1) of the Act before the appropriate Government for permission to o close down its Nerul plant. On April 2, 2008 the permission was granted to the respondent Company. A copy of that order was made available to the petitioners on February 4, 2008. However, it appears that on the same day i.e. on April 2, 2008, the services of the employees, were terminated by the respondent Company. The BKS, the union representing the petitioners and other workmen employed in the Nerul plant filed an application under Section 25-O(5) before the Appropriate Government on April 17,2008 seeking a review or a Reference of the application for closure to the Tribunal. While this application was pending hearing before the Commissioner of Labour, the petitioners preferred Complaint (ULP) No. 90/2008 on April 24, 2008. This complaint was filed under Item 9 of Schedule IV of the MRTU & PULP Act. The application for interim relief filed by the petitioners was vehemently opposed by the respondent. By the order dated May 8,2008, the Industrial Court rejected the application. While the interim application was being heard before the Industrial Court, the proceedings before the Commissioner of Labour under Section 25-O(5) continued. Ultimately on June 24, 2008, the Commissioner of Labour referred the following dispute for adjudication: "The matter in the application dated February 4, 2008 filed by United Breweries Limited, Plot No. D 1103/104, TTC Industrial Estate, Nerul, Navi Mumbai- 400 706 seeking closure permission for its industrial establishment situated at Nerul his hereby referred under Section 25-O(5) of the Act to the Industrial Tribunal, Thane consisting of Shri L.A. Borde." 5. Incidentally, the dispute has been referred to the same Presiding Officer who has passed the impugned order. A notice was issued by the Industrial Tribunal on July 3, 2008 directing the parties to remain present in Court on August 16, 2008. Strangely, while issuing notices to parties, the Industrial Tribunal does not seem to have taken into account the fact that the dispute referred was one under Section 25-O which is expected to be decided within one month of the reference being made for adjudication. The matter before the Tribunal has now been adjourned to September 17,2008. The respondent Company has not filed its statement of claim as yet before the Tribunal. 6. The matter before the Tribunal has now been adjourned to September 17,2008. The respondent Company has not filed its statement of claim as yet before the Tribunal. 6. While all these proceedings were4 pending, the respondent Company filed Regular Civil Suit No. 133/2008 and applied for an injunction restraining the Defendants i.e. BKS, the General Secretary of the BKS and Navnath K. Naik i.e. the petitioner No. 1,4 herein, from (i) entering the factory premises of the respondent Company at Navi Mumbai; (ii) holding meetings and gathering in numbers, shouting slogans or staging demonstrations within a radius of 200 metres at the factory; (iii) : obstructing the officers, employees or managerial or administrative persons, visitors or any person dealing with the factory and; (iv) obstructing the trucks/vehicles carrying the material and equipment to and from the factory premises and while in transit, etc. This application was filed in July 2008. It appears that no ad interim relief was granted and therefore on August 12, 2008, a fresh application was made contending that 5 persons who had undertaken the job of dismantling the plant and machinery in the Nerol plant would not be able to survive if the workers did not permit food to be taken into the factory for them. By an order of the same day, the Civil Court restrained the Defendants from obstructing vehicles providing food to the employees till arguments were heard on Exhibit 5 i.e. the interim application. o 7. It appears that 2 heavy machines have already been removed from the factory premises by the respondents. The petitioners now seek a direction that the machines which are still on the factory premises should not be 5 removed pending the adjudication of Reference (IT) No. 20/2008 by the Industrial Tribunal. 8. Undisputedly, the impugned order has been passed on May 8, 2008 and the petition has 0 been filed on August 25, 2008. During the, interregnum, these 2 heavy machines have already been removed by the respondents. In the backdrop of these facts, it would be necessary to consider whether the petitioners are entitled to the interim relief as claimed. The principle question is whether the Industrial Court while deciding a complaint under Item 9 of Schedule IV can restrain the respondents Company from removing its plant and machinery till the reference made under Section 25-O(5) is adjudicated by the Industrial Tribunal. The principle question is whether the Industrial Court while deciding a complaint under Item 9 of Schedule IV can restrain the respondents Company from removing its plant and machinery till the reference made under Section 25-O(5) is adjudicated by the Industrial Tribunal. The crucial question would be whether an order for closure, comes into operation immediately after it has been passed or does the employer have to wait for implementing the order till the reference is decided. If it is found that the order passed by the Commissioner of Labour under Section 25-O(2) of the Industrial Disputes Act does not become operative immediately it is passed, then the next question to be answered would be whether by dismantling the plant and removal of machinery the respondents have prima facie committed an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act. 9. Mr. Bukhari, learned counsel appearing for the petitioners, has contended that an order passed permitting the closure under Section 25-O(2) is made subject to the provisions of sub-section (5) of Section 25-O. He submits that till the appropriate Government decides an application filed by the workman for either review of its order granting permission to close or for a reference of the matter to the Tribunal for adjudication, the employer cannot close down the industry. He submits that in view of the provisions of Section 25-O(1), the closure would come into effect 90 days after the date of the application filed under this provision. According to him, the scheme of Section 25-O does not permit the employer to implement a closure immediately on receipt of the order of the appropriate Government permitting the closure. This is because the application for closure must be decided within 60 days or else a deeming fiction under Section 25-O(3) would operate and the application for closure would be deemed to have been allowed. He points out that thereafter the workman can always file an application for review or a reference under Section 25-O(5). This is because the application for closure must be decided within 60 days or else a deeming fiction under Section 25-O(3) would operate and the application for closure would be deemed to have been allowed. He points out that thereafter the workman can always file an application for review or a reference under Section 25-O(5). Such an application has to be decided within a reasonable time and the Supreme Court in the judgment in the case of Orissa Textile & Steel Ltd. v. State of Orissa and Others, AIR 2002 SC 708 : (2002) 2 SCC 578 : (2002) 2 MLJ 13 : 2002-I-LLJ-858 Supreme Court has held that 30 days would be the reasonable time for disposing of an application under Section 25-O(5). Thereafter if the matter is referred for adjudication, the Tribunal has to pass an award within 30 days of the date of the reference. Thus, he submits that the employer cannot implement an order granting him permission to close down the factory for a further period of 60 days or till the reference is decided whichever is later. He urges that in any event, the employer cannot implement the closure during the period the application filed under Section 25-O(5) is pending. The learned counsel has relied on several judgments which I shall advert to later. 10. Mr. Talsania, learned counsel appearing for the respondents, submits that in the present case, the petitioners are not entitled to any relief as they have approached this Court after an inordinate delay from the date when they were refused interim relief by the Industrial Court. He submits that although a delay of a little over three months may not be of any consequence in most other matters, in the facts and circumstances of the present case, the I delay is fatal and disentitles the petitioners from any relief. According to Mr. Talsania, the explanation given by the petitioners for the delay, that the BKS which was representing them has decided not to cooperate with the ; petitioners, is not plausible. On merits, the learned counsel submits that Section 25-O is a complete code in itself and which has come into force from August 21, 1984, bridging the lacunae noticed in the earlier Section by the I Supreme Court in the case Excel Wear v. Union of India and Others, AIR 1979 SC 25 : (1978) 4 SCC 224 : 1978-II-LLJ-527. On merits, the learned counsel submits that Section 25-O is a complete code in itself and which has come into force from August 21, 1984, bridging the lacunae noticed in the earlier Section by the I Supreme Court in the case Excel Wear v. Union of India and Others, AIR 1979 SC 25 : (1978) 4 SCC 224 : 1978-II-LLJ-527. Under the scheme of the Section, the order passed by the appropriate Government permitting closure ; comes into operation immediately after it is passed and continues to exist while the review/reference is pending. He submits that the scope of sub-section (5) is that it provides a remedy to a party who is aggrieved by an order I passed under Section 25-O(2) which is akin to an appeal. Therefore, although a party can challenge such an order, the order continues to exist and operate and cannot be wished away, urges the learned counsel. The employer can act upon such an order immediately after it is passed. He points out that this is the only interpretation of Section 25-O that suggests itself. He submits that it is practically impossible to have a Reference with respect to closure decided within 30 days although that is the requirement of laws in almost all cases the decision may be delivered after one year. According to the learned counsel, any delay in implementing the closure and making it effective causes the employer to lose the ; advantage that he had of an order under Section 25-O(2). He points out that in the case of Vazir Glass Works Ltd. v. Maharashtra General Kamgar Union and Another AIR 1996 SC 1285 : (1996) 2 SCC 118 : 1996-I- LLJ-962, the I Supreme Court has observed that if a Reference is not decided within a year, the employer can always apply afresh for permission to close its undertaking. The learned counsel submits that under Section 25-O(4), the order of the appropriate Government granting permission is final and binding on all parties and continues to : remain in force for one year, albeit, subject to the provisions of sub-section (5). According to him, once the application for closure is granted, the embargo placed upon an employer from closing his concern is lifted and the closure comes into operation immediately. According to him, once the application for closure is granted, the embargo placed upon an employer from closing his concern is lifted and the closure comes into operation immediately. The employer need not wait for 90 days to elapse from the date of the application for closure in the event the application is decided within 60 days. According to him, the date of the proposed closure mentioned in the application id not relevant and if at all the employer obtains an order permitting him to close down before the expiry of 60 days from the date of the application for closure, the employer need not wait for 90 days to elapse from the date of the application. He submits that in such a case the employer can always pay wages for the period from the date of the closure being implemented till the proposed date of the closure contained in the application. The learned counsel submits that the workmen are not entitled to any interim relief in the complaint as the only relief which can be given to the workmen in the case of an illegal closure is compensation or wages as held by the Supreme Court in the case of Managing Director Karnataka Forest Development corporation Ltd. v. Workmen of Karnataka Pulpwood Ltd. and Others, 2008-I-LLJ-880 (SC). 11. The first question which I will consider now is whether any interim relief in the nature claimed by the petitioners can be granted by the Industrial Court in the complaint filed by them. The complaint has been filed claiming that the respondents have committed an unfair labour practice under Item 9 of Schedule IV of the MR TU & PULP Act. It is contended that the respondents had started removing the machinery from the Nerul plant while the petitioners application filed under Section 25-O(5) was still pending. According to the petitioners, this action of the respondents is in breach of the provisions of Section 25-O of the Act and, therefore, the respondents have committed an unfair labour practice under Item 9 of Schedule IV. One of the interim relief’s claimed is an injunction restraining the respondents from removing the plant and machinery from the Nerul plant. According to the petitioners, this action of the respondents is in breach of the provisions of Section 25-O of the Act and, therefore, the respondents have committed an unfair labour practice under Item 9 of Schedule IV. One of the interim relief’s claimed is an injunction restraining the respondents from removing the plant and machinery from the Nerul plant. In my view, if it is found prima facie that there is an unfair labour practice on the part of the employer i.e., the respondents Company in implementing the order of closure immediately on the date it was passed, the Industrial Court would have Jurisdiction to grant the interim relief claimed by the petitioners during the pendency of the reference before the Industrial Tribunal. 12. It is trite that an implied condition of every agreement including a settlement is that parties thereto will act in conformity with law. If the employer acts in violation of any provision of law it would amount to an unfair labour practice under Item 9 of Schedule IV. The Supreme Court has so held in the case of S. G. Chemicals and Dyes Trading Employees v. S. G. Chemicals and Dyes Trading Limited and Another, (1986) 2 SCC 624 : 1986-I-LLJ-490. The question now is whether in the present case there is a breach of law i.e. the provisions of Section 25-O, entitling the petitioners to interim relief in the complaint filed by them. Before proceeding in the matter, in my opinion, it would be appropriate to set out the provisions of Section 25-O of the Act. 13. Section 25-O reads thus: "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 the other construction work. (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 (1) and the appropriate 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 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 grant3, 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 41 days from the date of such reference. (6) Where no application for permission under this 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 51 the undertaking had not been closed down. (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 (1) shall not apply in relation to such undertaking for o 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 Section, shall be entitled to receive compensation which shall be equivalent to fifteen days average pay for every competed year of continuous service or any part thereof m excess of six months." 14. An analysis of the provisions of this section indicates that an employer desiring to close an industrial establishment in which more than 100 persons are employed must apply for permission to close down at least 90 days prior to the date on which the proposed closure is to become effective. The parties i.e. both the employer, the union representing the workmen or if there is no union the workmen themselves, are required to be heard by the appropriate Government before passing any order. Once the appropriate Government is convinced of the genuineness or adequacy of the reasons stated by the employer in his application for closure and after considering the interest of the general public and all other relevant factors the appropriate Government may either grant or refuse permission to close down an undertaking. The application must be decided by the appropriate Government and the order should be communicated within 60 days from the date on which the application is made or else, the permission for closure is deemed to have been granted. The order either granting or refusing permission remains in force for one year from the date of the order. It is final and binding on all parties, subject to a review or reference to the Industrial Tribunal for adjudication by the appropriate Government. In the event, the appropriate Government refers the application for closure to the Tribunal for adjudication, the Tribunal is expected to make an award within a period of 30 days from the date of the reference. It is final and binding on all parties, subject to a review or reference to the Industrial Tribunal for adjudication by the appropriate Government. In the event, the appropriate Government refers the application for closure to the Tribunal for adjudication, the Tribunal is expected to make an award within a period of 30 days from the date of the reference. Where an employer closes I an undertaking either without submitting an application as prescribed under sub-section (1) or In spite of the permission to close down being refused, the closure of the undertaking is deemed to be illegal from the date of the closure. The workmen are entitled to all benefits 1 under any law as if the undertaking had not been closed. The appropriate Government may in exceptional circumstances, direct that the provisions of sub-section (1) of Section 25-O, would not apply to an undertaking. Every 1 workman who was in employment immediately prior to the closure of the undertaking is entitled to compensation equivalent to 15 days average pay for every completed year of continuous service or part thereof in excess of 6 months. Thus, Section 25-O appears to be a complete code in itself. 15. When would an order passed under Section 25-O(2) become operative is the next issue which must be determined. Can it be enforced immediately on receipt of a permission to close down or does the employer have to wait for a reasonable period of time and in any event, 60 days after the permission is granted before he can actually implement the closure by terminating the services of the workmen? 16. Mr. Bukhari, learned counsel for the petitioners, has submitted that once an application has been filed under Section 25-O(5), the employer loses the right to implement the order passed in his favour under Section 25-O(2) till such time as the order is reviewed or the application for closure is referred for adjudication. Undisputedly, once there is a reference, the Tribunal has to consider the application afresh without having to advert to the order of the appropriate government granting the permission for closure. Undisputedly, once there is a reference, the Tribunal has to consider the application afresh without having to advert to the order of the appropriate government granting the permission for closure. In the case of Orissa Textile & Steel Ltd v. State of Orissa and Others (supra) it has been held that the provisions for review and/or reference available under Section 25-O is in addition to the remedy of a judicial review under Article 226 or Article 32 of the Constitution of India of an order 50 passed under Section 25-O(2). It has also been held that the period for disposing of an application under Section 25-O(5) is 30 days from the date it was preferred. In the case of Workmen of Kempf (I) Ltd v. Government of Tamil Nadu and Others, 1993-III-LLJ (Suppl)-913 (Mad), the Division Bench of the Madras High Court held that the finality of an order passed under Section 25-O(2) read with 25-O(4) is subject to the exercise of power o under Section 25-O(5). The Madras High Court has observed that when the review is undertaken under sub-section (5) of Section 25-O, it is a fresh adjudication on merits of the application and the procedure to be followed must conform to the one contained in Section 25-O(2). All parties are expected to be heard by the appropriate Government before it either reviews its order or refers the application for closure to the Tribunal for adjudication. A learned single Judge of this Court in the case of o Maharashtra General Kamgar Union v. Star Oxides & Chemicals Ltd and Another, 1996-I-LLJ-995 (Bom) has quoted with approval the aforesaid decision of the Madras High Court, while dealing with the provisions of Section 25-N of the ID Act. In the case of Voltas Employees Union v. Voltas Ltd. and Another, 2003-II-LLJ-31 (Bom), I had an occasion to consider the provisions of Section 25-O of the Act. In the light of several o judgments cited before me, I had observed that in case a Reference is made for adjudication to the Tribunal under Section 25-O(5), the Tribunal has to consider the application for closure de novo. Similarly, in the case of Mahalaxmi Glass Works v. State of Maharashtra, (2007) III CLR 43, a learned single Judge of this Court (KANADE, J.) has observed that the Tribunal is required to adjudicate the application afresh. Similarly, in the case of Mahalaxmi Glass Works v. State of Maharashtra, (2007) III CLR 43, a learned single Judge of this Court (KANADE, J.) has observed that the Tribunal is required to adjudicate the application afresh. In para 20, the learned Judge has observed thus: "20. The next question which falls for consideration is regarding the burden of proof. It is well settled principle in law that initially burden of proving the fact lies on the person who asserts the said facts. In the present case, the matter has been referred for adjudication by a judicial Tribunal. It, therefore, cannot be argued that merely because a quasi judicial authority viz. the appropriate Government having held that there were adequate reasons for the closure of the unit and had granted permission for the closure of the unit, in view of the specific provision of sub-section 5 of Section 25-O, the Tribunal is not authorised to adjudicate the dispute afresh. That being the position, in my view, initial order which is passed by the authority under sub-section 2 of Section 25-O, therefore, is in a way kept in cold storage or is kept in abeyance and the judicial Tribunal is required to adjudicate on the said issue afresh. If the relevant provision is harmoniously construed, then in that event, this can be the only proper interpretation which can be given to the said provision laid down in sub-section 5 of Section 25-O. That being the case, the company, therefore, will have to establish before the judicial Authority that sufficient grounds existing for the purpose of seeking permission for the closure of the unit and consequently, the burden of proving this fact would squarely lie on the company and not on the workmen. The learned counsel for the petitioner has relied on the Judgment of the Division Bench in the case Narang Latex and Dispersions Pvt. Ltd. (supra). Inmy view, the ratio of the said judgment will not apply to the facts of the present case. In the said case, the Division Bench was required to consider the question of burden of proof in a case where the fairness or otherwise of the domestic inquiry was to be determined, particularly, since the domestic inquiry had culminated In an order of dismissal which was passed by the company against the workman. In the said case, the Division Bench was required to consider the question of burden of proof in a case where the fairness or otherwise of the domestic inquiry was to be determined, particularly, since the domestic inquiry had culminated In an order of dismissal which was passed by the company against the workman. In this context, the Division Bench after relying on the Division Bench judgment of the Allahabad High Court in a case of Airtech (Pvt.) Ltd. v. State of U.P. (1984) 49 FLR 38 and also of the Division Bench judgment of this Court in the case of V.N.S. Engineering and Services Company v. Industrial Tribunal, Goa, Daman and Diu, (1987) II LLN 968 and after referring to the facts of the said case, the Division Bench then considering the aforesaid two Division Bench judgments, finally held that the burden of proof was on the workman to prove that the domestic inquiry was not fair since it felt that the reference having been made at the instance of the workman and he having alleged that his dismissal was wrongful and in that context it held that the party which comes before the Court alleging that the inquiry was not fair and proper alone had to prove initially the said fact. What is material, therefore, is not terminology which is used in either the order of reference which is made nor the manner and the form in which the reference is worded ultimately. What has to be seen is not the, form but the substance of the order of reference in the present case. In this view of the matter, the ratio of the said matter in Narang Latex and Dispersions Pvt. Ltd. (supra) will not apply to the facts of the present case. In my View, the Tribunal had correctly held that the burden of proof of establishing the existence of the ground for the closure of the company shall squarely fall on the company and not on the workmen." 17. The import of the words "final" and "binding" contained in sub-section 4 of Section 25-O will have to be considered. Mr. Talsania has argued that in view of the provisions of Section 25-O(2) read with 25-O(4), once the appropriate Government passes an order granting permission to close down, it is final and binding on all the parties concerned and comes into operation immediately. Mr. Talsania has argued that in view of the provisions of Section 25-O(2) read with 25-O(4), once the appropriate Government passes an order granting permission to close down, it is final and binding on all the parties concerned and comes into operation immediately. It is for the employer to decide what is the date on which the closure should be effected; whether it should commence immediately on the day permission to close the undertaking is granted or on the proposed date of closure contained in the application or any other date within a year from the date of the order passed under Section 25-O(2). According to him, once the embargo on closure is lifted by granting the permission under Section 25-O(2), the Industrial undertaking can be closed immediately. In my view, this submission cannot be accepted. This is because the legislature in its wisdom has provided for a review of the order of the appropriate Government or for reference of the application for closure to the Tribunal under Section 25-O(5). If the employer is permitted to implement the closure immediately on being granted permission under Section 25-O(2), the provisions of sub-section (5) of Section 25-O would be rendered nugatory. That could not be the legislative intent, in letter or spirit. Nor can this be the object of Section 25-O which is contained in a welfare legislation. Undoubtedly, it has been held in Excel Wear v. Union of India and Others (supra) that a right to dose down a business is an integral part of the fundamental right to carryon business as guaranteed under Article 19(1)(g) of the Constitution of India. The Supreme Court had held 1hat Section 25-O as it then stood was unconstitutional as the restrictions imposed by the Section were unreasonable. The Section was later amended and while upholding the constitutionality of the amended Section 25-O it has been held by the Supreme Court in Orissa Textile & Steel Ltd v. State of Orissa and Others (supra) thus 2002-I-LLJ-858 at p. 871: "18. We also see no substance in the contention that the amended Section merely deals with the procedural defects pointed out in Excel Wear v. Union of India and Others (supra) case and does not deal with the substantive grounds set out in Excel Wear v. Union of India and Others (supra). We also see no substance in the contention that the amended Section merely deals with the procedural defects pointed out in Excel Wear v. Union of India and Others (supra) case and does not deal with the substantive grounds set out in Excel Wear v. Union of India and Others (supra). In our view the amended Section 25-0 is very different from Section 25-O (as it then stood). It is now more akin to Section 25-N (as it then stood) thy constitutional validity of which was upheld in Meenakshi Mills case. In Excel Wear v. Union of India and Others (supra) it has been accepted that reasonable restrictions could be placed under Article 19(6) of the Constitution. Excel Wear case recognizes that in the interest of general public it is possible to restrict, for a limited period of time, the right to close down the business. The amended Section 25-O lays down guidelines which are to be followed by the appropriate Government in granting or refusing permission to close down. It has to have regard to the genuineness and adequacy of the reasons stated by the employer. However, merely because the reasons are genuine and adequate cannot mean that permission to close must necessarily be granted There could be cases where the interest of general public may require that no closure takes place. Undoubtedly where the reasons are genuine and adequate the interest of the general public must be of a compelling or overriding nature. Thus, by way of examples, if an industry is engaged in manufacturing of items required for defence of the country, then even though the reasons may be genuine and adequate it may become necessary, in the interest of the general public, not to allow closure for some time. Similarly, if the establishment is manufacturing vaccines or drugs for an epidemic which is prevalent at that particular point of time, interest of the general public may require not to allow closure for a particular period of time. We must also take a note sub-section (7) of the amended Section 25-O which provides that if there are exceptional circumstances or accident in the undertaking or death of the employer or the like, the appropriate Government could direct that provision of sub-section (1) would not apply to such an undertaking..... We must also take a note sub-section (7) of the amended Section 25-O which provides that if there are exceptional circumstances or accident in the undertaking or death of the employer or the like, the appropriate Government could direct that provision of sub-section (1) would not apply to such an undertaking..... " (emphasis supplied) The Supreme Court has thus recognised the principle that the right of an employer to o close down his undertaking can always be restricted in the manner laid down under Section 25-O. The right that an employer has to close down his business is thus fettered by the provisions of Section 25-O." 18. The learned counsel for the employer has submitted that the only way to interpret Section 25-O(4) and (5) is to treat Section 25-O(5) as a remedy available to an aggrieved o party against an order passed by the appropriate Government under Section 25-O(2). He emphasises that the order continues to exist and comes into operation immediately. For construing the words "final" and "binding" 5 contained in sub-section (4) he has placed reliance on the judgment in the case of Commissioner of Sales Tax, U.P., Lucknow v. Super Cotton Bowl Refilling Works AIR 1989 SC 922 : (1989) 1 SCC 643 wherein the provisions of Section 35 of the U.P. Sales Tax o Act, 1948 were considered. The Supreme Court has observed that as the words "shall.............be final" have been used in Section 35(5), it would be improper to interpret the spirit and reason of that law in such a way as to enjoin that a further 5 revision lay to the High Court under Section 11 of the Act. The Supreme Court has also observed that while interpreting a statute it is necessary to ascertain the intention of the legislature from the words used by their natural meaning and the spirit and reason of the law. In Cable Corpn of India Ltd. v Additional Commissioner of Labour and Others 2008-II-LLJ-1057 (SC) the Apex Court has observed that when the words of a statute are clear and unambiguous and are reasonably susceptible to only one meaning the Courts are bound to give effect to that meaning, irrespective of the consequences. While reiterating its earlier decision in the case of Nathi Devi v. Radha Devi Gupta AIR 2005 SC 648 : (2005) 2 SCC 271 the Apex Court has observed thus 2008-II-LLJ-1057 at p.1061: "19. While reiterating its earlier decision in the case of Nathi Devi v. Radha Devi Gupta AIR 2005 SC 648 : (2005) 2 SCC 271 the Apex Court has observed thus 2008-II-LLJ-1057 at p.1061: "19. When a language is plain and unambiguous and admits of only one meaning no question of construction of statute arises, for the Act speaks for itself. 20. As observed in Nathi Devi v. Radha Devi Gupta (supra) if the words used are capable of one construction, then it would not be open to the Courts to adopt any other hypothetical construction on the ground that 20 such construction is more consistent with the alleged object and policy of the Act. The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly be not given effect to in opposition to the plain language of the Sections of the Act." 19. Thus the only manner in which Section 25-O(5) can be interpreted in order to effectuate the policy of the Act is that though the order under sub-section (2) is final and binding on the parties it cannot be acted upon by the parties till a review/reference is decided. A party may act on such an order only after waiting for a reasonable period during which an application for a review/reference can be filed by the aggrieved party under sub-section (5). If such an application is preferred then the party must wait for a reasonable period of 30 days as observed in Orissa Textile & Steel Ltd. y. State of Orissa and Others (supra) while the application is decided. The plain language of the Section admits of no other interpretation. 20. Undoubtedly, the objective of enacting 25-O is to provide for a procedure regulating the closure of industrial establishments. The restrictions are provided to deter reckless, unfair, unjust and mala fide closures. The mechanism of a review/reference has been provided as a safeguard against unwarranted closures of industrial undertakings. Therefore, the order which has been passed under Section 25-O(2) does not become operative till the review/reference is decided. The restrictions are provided to deter reckless, unfair, unjust and mala fide closures. The mechanism of a review/reference has been provided as a safeguard against unwarranted closures of industrial undertakings. Therefore, the order which has been passed under Section 25-O(2) does not become operative till the review/reference is decided. In my opinion, therefore, the employer must wait at least for a period of 30 days from the date of the order under Section 25-O(2) so that the application under Section 25-O(5) can be decided as that is the reasonable period prescribed within which it has to be decided in the case of Orissa Textile & Steel Ltd. v. State of Orissa and Others (supra). Thereafter the employer must wait for another 30 days within which period the reference is expected to be decided. As this period of 30 days for a decision on the reference is held to be directory the employer must wait till the Tribunal decides the matter as expeditiously as possible, and in any case, within the outer limit of one year from the date when the application was granted by the appropriate Government under Section o 25-O(2). 21. Apart from this, as rightly contended by Mr. Bukhari, in any event, the employer cannot close down the undertaking prior to the proposed date of closure contained in the 5 application filed under Section 25-O(1). In the present case, applications were filed for extending the date of the application filed under Section 25-O(1) since the 60 days period contemplated under Section 25-O(3) was drawing to an end. These extension applications have been preferred on February 26,2008, March 13,2008 and March 27, 2008, praying that the application for closure be treated as having been made on January 18, 2008, January 30, 2008 and February 4, 2008 respectively. According to the respondents these extension applications have been made as directed by the Commissioner of Labour who was unable to decide their original application filed on January 3, 2008 within 60 days as required under the Act. Be that as it may, the application which was considered by the appropriate Government in its order dated April 2, 2008 was the application for permission to close down the undertaking dated February 4, 2008. Automatically therefore, the date of the proposed closure would also get extended to May 4, 2008 i.e. 90 days from the date of the application. Be that as it may, the application which was considered by the appropriate Government in its order dated April 2, 2008 was the application for permission to close down the undertaking dated February 4, 2008. Automatically therefore, the date of the proposed closure would also get extended to May 4, 2008 i.e. 90 days from the date of the application. Undisputedly, the application for review had been filed by the workman on April 17, 2008. However, the respondents had implemented the order dated April 2, 2008 on that very day itself by terminating the services of the workmen. In my view, this tantamount to a breach of the provisions of Section 25-O and, therefore, would prima facie be an unfair labour practice under Item 9 of schedule IV of the M.R.T.U. and P.U.L.P. Act. The Industrial Court has committed an error by rejecting the application for interim relief in the present case. 22. Mr. Talsania has submitted that the only relief which can be granted to the workmen in the pending reference is that of payment of compensation and therefore, no interim relief need be granted to the workman in the complaint. In my view, this submission cannot be accepted. When the Tribunal decides the reference, the entire case is open before it. The Tribunal can in a given case after considering the genuineness and adequacy of the reasons for closure as also the interest of the general public refuse the permission for closure. In such a case the employer would have to run the industrial establishment. The relief that the Industrial Tribunal can grant is no doubt circumscribed by the reference made to it for adjudication. However, if the Tribunal finds that some affirmative relief is required to be granted in order that justice is done, it is not hamstrung in taking such action. Though in the judgment in the case of Managing Director Karnataka Forest Development corporation Ltd. v. Workmen of Karnataka Pulpwood Ltd. and Others (supra), the Supreme Court has observed that the only right which accrues in favour of the workmen is to obtain compensation as provided for, the observation has been made in the facts and circumstances of that case. In that case, a joint sector company i. e. Karnataka Pulpwood Limited (for short, 'KPL') was directed to be wound up by the State of Karnataka. In that case, a joint sector company i. e. Karnataka Pulpwood Limited (for short, 'KPL') was directed to be wound up by the State of Karnataka. The assets and liabilities of the Company and the guarantee given by the Government on behalf of the Company for raising loans were transferred to Karnataka Forest Development Corporation (for short, 'KFDC'). An attempt was made to wind up the industrial undertaking (i.e. the KPL under the provisions of the Companies Act. The State approved of the merger of the Company with the KFDC. A proposal was also mooted for voluntary retirement of the workers of the KPL. An application was filed for closure of the KPL before the appropriate Government. The Union representing the workmen was also heard. The appropriate Government observed that the workmen were willing to accept VRS offered to them by KPL. However, it objected to the absorption of KPL staff into KFDC. The appropriate Government after taking into consideration all the aspects of the matter, permitted the closure of KPL. The union filed a writ petition challenging the closure in the High Court of Karnataka. The High Court observed that in the facts and, circumstances of the case, the workmen were at liberty to accept the VRS or closure compensation with a request for absorption in KFDC. It is in these circumstances that the Supreme Court observed that the workmen would be entitled to closure compensation under sub-section (8) of Section 25-O. The Supreme Court also noted that although the union had raised various objections regarding the absorption of the workers in the new company, voluntary retirement, etc., it did not refute the losses incurred by KPL or question the genuineness and adequacy of the reasons advanced by the management for closing the undertaking. No application for review/reference was filed by the union under sub-section (5). The Supreme Court observed that since the closure of the undertaking had become effective and the only w challenge of the union was related to the absorption of the workmen in the KFDC, the workmen of KPL were entitled to compensation. However, there is no discussion in this judgment regarding the issue involved in the present petition i. e. when does the permission to close down the undertaking become effective. The union in that case had chosen not to prefer and application under Section 25(5) for review or a reference. However, there is no discussion in this judgment regarding the issue involved in the present petition i. e. when does the permission to close down the undertaking become effective. The union in that case had chosen not to prefer and application under Section 25(5) for review or a reference. In these circumstances, I am of the view that the workmen would not be entitled to just the compensation as provided under Section 25-O(8). The Industrial Tribunal could take affirmative action by granting relief to the petitioners if it finds that the closure is not in the interest of the general public or that the reasons for closure are not genuine or adequate and refuses permission to close the undertaking. 23. The question still remains as to whether the relief claimed in the interim application can be granted to the petitioners today. Mr. Talsania has pointed out that the impugned order was passed on May 8, 2008 and that the respondents had started dismantling the machinery much prior to that date. In fact, in the affidavit filed in reply to the petition the 5 Assistant Vice President of the respondent Company has stated that the respondents had sought to take out the machines and equipment from the plant on April 3, 2008 itself but the workmen had prevented the drivers of the trucks called for transportation of the machinery and had prevented ingress and egress of men and material. He has thereafter stated that respondent No. 1 commenced the work of dismantling the plant and machinery on August 11,2008 through a specialised agency of demolition and scrap. He has further stated that by August 28, 2008, the process of dismantling the machinery has been completed. He has averred that several equipments have been shifted from the premises and that most of the plant and machinery which has been dismantled is rusted, redundant and has been scrapped. The petitioner No. 1 has filed an affidavit in reply contending that two machines have been removed from the Nerul unit in the night between August and 31, 2008 under heavy police protection. A list of machines which are still maintained in the Nerul plant has been annexed to the affidavit. It appears that the machines were removed after the respondents paid Rs. 74,010/- to the Commissioner of Police, Navi Mumbai for providing security. A list of machines which are still maintained in the Nerul plant has been annexed to the affidavit. It appears that the machines were removed after the respondents paid Rs. 74,010/- to the Commissioner of Police, Navi Mumbai for providing security. The affidavit filed on September 2, 2008 by the Assistant Vice President that the machinery has been dismantled on August 28, 2008 and that Filler machine and the Labeler machine have been dispatched to other units of respondent No. 1 outside the State of Maharashtra, immediately thereafter. 24. In my view, although there is a delay in approaching this Court after May 8, 2008, It is not fatal as sought to be contended by Mr. Talsania. The respondents started dismantling the machinery only on August 11,2008, may be because the petitioners prevented them from doing so earlier. However, the fact remains that the dismantling process commenced on August 11, 2008 and was completed on August 28, 2008, after the petition was filed on August 25, 2008. The Petition has been moved on September 1, 2008 when the respondents, agreed not to shift the machinery although the dismantling process would continue. In my opinion, the delay in approaching this Court which has been adequately explained by the petitioners. As I have already held that prima facie the respondents have committed an unfair labour practice by implementing the closure on April 2, 2008 immediately after the permission was granted, the petitioners would be entitled to interim relief in the complaint filed by them before the Industrial Court. In my view, in the facts and circumstances of this case, the appropriate order would be as follows: ORDER (i) The respondents are restrained from shifting the plant and machinery which has already been dismantled pending the decision in Reference (IT) No. 20/2008. (ii) In the event any machinery has not been dismantled as yet, it shall not be so dismantled till the reference is heard. (iii) The buildings and structures of the plant shall not be demolished till the reference is disposed of. (iv) The respondents shall file their statement of claim before the Industrial. Tribunal in reference (IT) No. 20/2008 within two weeks from today. The petitioners will file their reply within two weeks thereafter. (v) The Industrial Tribunal will dispose of the reference (IT) No. 20/2008 expeditiously and in any event before November 30, 2008. (iv) The respondents shall file their statement of claim before the Industrial. Tribunal in reference (IT) No. 20/2008 within two weeks from today. The petitioners will file their reply within two weeks thereafter. (v) The Industrial Tribunal will dispose of the reference (IT) No. 20/2008 expeditiously and in any event before November 30, 2008. The parties shall cooperate with the Industrial Tribunal in disposing of the reference by this date. 25. Rule made absolute accordingly. No costs.