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2018 DIGILAW 600 (ORI)

R. R. Vederah v. State of Orissa

2018-06-19

D.P.CHOUDHURY

body2018
JUDGMENT DR. D.P. CHOUDHURY, J. - Challenging has been made to the order of taking cognizance under Sections 25-R (2) read with Section 25-O(2) of the Industrial Disputes Act, 1947 (hereinafter called “the Act”) and issuance of process against the petitioner. 2. The factual matrix leading to the case of the prosecution is that the petitioner was the Director of M/s. Ballarpur Industries Limited (hereinafter called ‘BILT’). State of Orissa in Labour Department made complaint that on 18.12.2002 the establishment of the petitioner sent notice to the State Government seeking permission to close its undertaking in terms of Section 25-0 of the ct read with Orissa Industrial Disputes Rules, 1959 (hereinafter called “the Rules”). Since within sixty days of receipt of the said notice by the State Government, no permission was received, the establishment of the petitioner issued notification to close the same with effect from 31.3.2003. But the State Government alleged that before the period of sixty days is over, the establishment of the petitioner issued notice of closure of the institution for which petitioner being the Director of the organization is liable under Section 25-R (2) of the Act. So, the complaint was filed. Learned Magistrate took cognizance of the offence and issued process. SUBMISSION 3. Mr. J.Das, learned Senior Advocate appearing for the petitioner submitted that the State Government in Labour Department has not followed the provisions of law properly. According to him, the application for closure was made on 23.12.2002 and sixty days have been lapsed in the mid night of 19/20.2.2003, but the State Government already refused to accord permission on 18.2.2003, which was not received by 19/20.2.2003 for which under deeming provision of Section 25-0 (1) and (3) of the Act the organization of the petitioner issued notice of closure. On the other hand, he submitted that since within sixty days from the date of making application no permission of closure is received, the organization of the petitioner issued the notice of closure. So, the petitioner is not liable for any breach of provision of law and as such the complaint is not maintainable. 4. Mr. On the other hand, he submitted that since within sixty days from the date of making application no permission of closure is received, the organization of the petitioner issued the notice of closure. So, the petitioner is not liable for any breach of provision of law and as such the complaint is not maintainable. 4. Mr. Das, learned counsel for the petitioner further submitted that since the undertaking of the petitioner has no work force of any nature either permanent or contractual, closure was invited as per the provisions of law, the organization has sought for permission but the State failed to act in accordance with law for which the notification of closure was issued. But the learned Magistrate has committed error by not applying mind to the fact and law of this case for which the said impugned order is vulnerable and liable to be quashed. 5. Mr. P.K. Mohanty, learned Additional Standing Counsel submitted that issue of communication is closely involved with the case. According to him, the interpretation of relevant provision under Section 25-0 of the Act and Rule 82-A of the Rule is required in this case. Necessary order of refusal of closure of the organization has been well communicated within sixty days and the argument made by the learned counsel for the petitioner is not correct. BILT made request to the State Government under Section 25-O of the Act on 18.12.2002 and said application was received on 23.12.2002. According to Section 25-0 (2) of the Act, the decision to refuse grant permission of closure of the organization was passed on 18.2.2003 and on the same day it was communicated to BILT. Section 25-O (3) mandates that where an application has been made under sub-section (1) of said Section 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, it shall be deemed to have been granted on the expiration of the said period of sixty days. 6. Learned Additional Standing Counsel submitted further that the word ‘communication’ carries importance in the Act. Under Sections 3 and 4 of the Indian Contract Act, the communication, acceptance and revocation of proposals have to be considered to interpret these relevant provisions of the Act. 6. Learned Additional Standing Counsel submitted further that the word ‘communication’ carries importance in the Act. Under Sections 3 and 4 of the Indian Contract Act, the communication, acceptance and revocation of proposals have to be considered to interpret these relevant provisions of the Act. Since the communication was issued by registered post by the State Government, the deeming provision would not apply and the State Government has complied the provisions of law. Thus, the prayer of the petitioner to quash the impugned order should be rejected. DISCUSSION 7. It is admitted fact that the petitioner was one of the Directors in the Board of BILT. It is not in dispute that petitioner made application under Section 25-0 (1) of the Act intending to close the organization for lack of its work force either regular or contractual. It is not in dispute that the petitioner passed the order on 20.2.2003 about closure of the establishment with effect from 31.3.2003. Before going to the facts, it is necessary to approach the legal provision to make it more diluted so as to take a decision in the matter. 8. No doubt under Section 25-K of the Act, Chapter VB(1) is also applicable to the Industrial establishment which is not less than 100 workmen per year. No doubt the organization of the present petitioner is coming under application of CHAPTER VB of the Act. Section 25-O of the Act specifically enshrines procedure for closing down an undertaking. It is relevant to quote the necessary provision of Section 25-0 of the Act. “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 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 refused 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.” Section 25-R of the Act which carries the penal provision is as follows: “25R. Penalty for closure. – (1) Any employer who closes down an undertaking without complying with the provisions of sub-section (1) of Section 25-O shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both. (2) Any employer, who contravenes an order refusing to grant permission to close down an undertaking under sub-section (2) of Section 25-O or a direction given under Section 25P, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both, and where the contravention is a continuing one, with a further fine which may extend to two thousand rupees for every day during which the contravention continues after the conviction.” 9. From the aforesaid provisions, it is clear that if any employer of the establishment violates sub-section (1) or (2) of Section 25-0 of the Act which are relevant for this case are punishable with imprisonment or with fine or both. From the aforesaid provisions, it is clear that if any employer of the establishment violates sub-section (1) or (2) of Section 25-0 of the Act which are relevant for this case are punishable with imprisonment or with fine or both. Sub-section (3) of Section 25-O clearly states that after the application is made under sub-Section (1), the appropriate Government if fails to communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which said application is made, then the permission applied shall be deemed to have been granted on the expiration of the said period of sixty days. On the other hand, sixty days to be counted from the date on which application is made. Under the said Act, the State Government has been given power to frame rule for implementation of the provisions of the Act. Accordingly the State Government made Rules. Rule 82-A of the Rules connotes about notice on an application for permission of closure. Relevant provision of Rule 82-A is as follows: “82-A. Notice of and application for permission for closure-(1) In an Industrial establishment to which Chapter-V-B of the Act does not apply if an employer intends to close down an undertaking, he shall give notice of such closure in Form ‘U’ to the State Government, the Labour Commissioner, Local Conciliation Officer, the local Employment Exchange and Director of Employment, Orissa by registered post. [(2) In an industrial establishment to which Chapter V-B the Act applies, and in respect of which the Central Government is not the appropriate Government- [(i) an application for prior permission of intended closure of an undertaking under Sub-section (1) of Section 25-O shall be made in triplicate in Form V-1 by the employer to the State Government either personally or by registered post with acknowledgement due with copy to the Labour Commissioner, Orissa, Local Conciliation Officer, Deputy/Assistant Labour Commissioner of the concerned Zone and representatives of the workmen. The date on which the application for prior permission to close down the undertaking is received by the State Government or where the application is sent by registered post, the date on which the same is delivered to the State Government shall be deemed to the date on which the application is made for the purpose of Sub-Section (1) and Sub-Section (3) of Section 25-O] (The underline is made by Court) A copy of such application shall also be served by a notice in this regard displayed conspicuously by the employer on a notice board at the main entrance of the establishment for the information of all the concerned workmen at the same time when application is served on the State Government; (ii) the employer concerned shall furnish to the State Government to whom the application for permission to close down has been made, such further information as the State Government consider necessary for arriving at a decision on the application and calls for from such employer.] [(3) The State Government after making such enquiry as it thinks fit after giving a reasonable opportunity of being hear to the employer, the workmen and the persons interested in such closure, shall, issue an order either granting or refusing to grant permission for closure for reasons to be recorded in the said order in Form V-B. Copy of such order shall be communicated to the employer and the workmen concerned by registered post with acknowledegment due with copy to the representatives of the workmen, Labour Commissioner, Orissa, Bhubaneswar, Deputy Labour Commissioner/Assistant Labour Commissioner of the concerned Zone and the Local Conciliation Officer.]” 10. Clause (i) of sub-rule (2) is very clear to solve the problem of this case. It is clear from the aforesaid provision that the date of delivery of application to the State Government shall be deemed to be the date on which application is made as per Section 25(1) and 25(3) of the said Act. Similarly sixty days is to be counted when the application is made, that means the date when the State Government received, is the date on which the period of sixty days commences. Since the provision is very clear, there is no need of borrowing any provision from Indian Contract Act to interpret the same. Similarly sixty days is to be counted when the application is made, that means the date when the State Government received, is the date on which the period of sixty days commences. Since the provision is very clear, there is no need of borrowing any provision from Indian Contract Act to interpret the same. The salutary principle of interpretation is that when the provisions are unambiguous, the literal interpretation of the words used should be the rule and the Court is not required to substitute the said meaning either borrowing from any other statue or taking help of the General Clauses Act. 11. It is reported in the case of Cabell-V- Markhan, 148 F 2d 737 (2d Cir 1945), Learned Hand, J. articulated the merits of purposive interpretation: “Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” The House of Lords in Regina (Quintavalle) –V- Secretary of State for Health [2003] UKHL 13: [2003] 2 AC 687 : [2003] 2 WLR 692 (HL) observed as under: “The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Comrs v Adamson (1877) 2 App Case 743 at 763, [1874-80] All ER Rep 1 at 11. In any event, now a days the shift toward purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context, e.g. social welfare legislation and tax statutes may have to be approached somewhat differently.” 12. The aforesasid decisions are clear illustration of purposive interpretation. Said decisions have also been followed by the Hon’ble Supreme Court in the case of Abhiram Singh – V-C.D. Commachen (dead) by legal representatives and others; (2017) 2 SCC 629 . The aforesasid decisions are clear illustration of purposive interpretation. Said decisions have also been followed by the Hon’ble Supreme Court in the case of Abhiram Singh – V-C.D. Commachen (dead) by legal representatives and others; (2017) 2 SCC 629 . Not only this but also the aforesaid view has been well propounded in the decision reported in the case of Ms. Eera Through Dr. Manjula Krippendorf –V- State (Govt. of NCT of Delhi) and another; 2018 (4) Supreme 33 and at paragraph-62, Their Lordships have observed in the following manner: “62. I have referred to the aforesaid authorities to highlight that legislative intention and the purpose of the legislation regard being had to the fact that context has to be appositely appreciated. It is the foremost duty of the Court while construing a provision to ascertain the intention of the legislature, for it is an accepted principle that the legislature expresses itself with use of correct words and in the absence of any ambiguity or the resultant consequence does not lead to any absurdity, there is no room to look for any other aid in the name of creativity. There is no quarrel over the proposition that the method of purposive construction has been adopted keeping in view the text and the context of the legislation, the mischief it intends to obliterate and the fundamental intention of the legislature when it comes to social welfare legislations. If the purpose is defeated, absurd result is arrived at. The Court need not be miserly and should have the broad attitude to take recourse in supplying a word wherever necessary. Authorities referred to hereinabove encompass various legislations wherein the legislature intended to cover various fields and address the issue. While interpreting social welfare or beneficent legislation one has to be guided by the ‘colour’, ‘content’ and the ‘context of statues’ and if it involves human rights, the conceptions of Procrustean justice and Lilliputtian hollowness approach should be abandoned. The judge has to release himself from the chains of strict linguistic interpretation and pave the path that serves the soul of the legislative intention and in that event, he becomes a real creative constructionist Judge……… “ 13. The judge has to release himself from the chains of strict linguistic interpretation and pave the path that serves the soul of the legislative intention and in that event, he becomes a real creative constructionist Judge……… “ 13. With due regard to the aforesaid decision, it is necessary for understanding fundamental intention of the legislature and keeping in mind the purposive intention of the legislature and keeping in mind the purposive interpretation, in the present case, no interpretation of any word is required, if there is clear content of the statute available on the face of it. 14. Now adverting to the present facts of the case, the complaint before the Court shows that the application of the establishment was received by the State Government on 23.12.2002. So, under Rule 82-A, the sixty days will be counted from 23.12.2002 and it would only complete on 20.2.2003. On the other hand, P.R. also shows that on 18.2.2003 the State Government in Labour and Employment Department by exercising power under sub-Section (2) of Rule 25-O refused for permission to close the institution and on the same say dispatched the letter by registered post with A.D. It appears from Annexure-2 to the complaint that on 18.2.2003 the order of refusal to grant permission of closure has been communicated by registered post. But the P.R. is silent when it was received by the establishment of the petitioner. 15. Under Sub-Section (3) of Section 25-O of the Act read with Rule 82-A (2) the communication of refusal to grant permission to closure has to be made only between 23.12.2002 and 20.2.2003 (sixty days) but the petitioner has claimed that it has been received on 22.2.2003, which is not disputed by the State. It cannot be said that the communication of granting or refusal was made to the petitioner within sixty days for which the deeming provision of benefit of Section 25-O (3) is available to the petitioner as per the submission of the learned counsel for the petitioner. On the other hand, the purposive interpretation of Section 25-O (3) is that the date of passing of the order or of refusal or granting closure of undertaking of the establishment is not the matter but it must be communicated within sixty (60) days to the applicant from the date of receipt by the State. On the other hand, the purposive interpretation of Section 25-O (3) is that the date of passing of the order or of refusal or granting closure of undertaking of the establishment is not the matter but it must be communicated within sixty (60) days to the applicant from the date of receipt by the State. The date of receipt of order of granting order or denial to closure by the establishment or undertaking is to be taken as the date of communication by taking help Rule – 82-A (2) of the Rules, which is the available to the State towards the date of making application. In the present case, as the order of closure was not received by 22.12.2003, the order of closure is deemed to have been granted. 16. In terms of the above discussion, it appears that the order of closure of the institution having been made by applying the deeming provision under Section 25-O (3), no provision has been violated to attract penalty under Section 25-R (2) of the Act. Hence, the learned Magistrate has failed to appreciate the fact and law with proper perspective. Thus, the order of the learned Magistrate being vulnerable and same being passed without application of judicial mind, does not stand to the scrutiny of law. On the other hand, the order of taking cognizance and issuance of process to the petitioner being abuse of process of Court, the same is quashed. The CRLMC is accordingly disposed of. The interim order dated 31.1.2005 passed in Misc. Case No. 2498 of 2004 stands vacated. CRLMC disposed of.