Calcutta High Court
The State Of West Bengal & Others vs Hindustan Motors Ltd. on 13 July, 1999
Equivalent citations: (1999)3CALLT85(HC)
JUDGMENT V.K. Gupta, J.
1. This Appeal under clause 15 of the Letters Patent is directed against the Judgment dated 26th March, '99 passed by the learned single Judge of this Court in W.P. No. 181 of '99 whereby the writ Application filed by Respondent No. 1 Hindustan Motors Ltd. challenging the Order dated 5/1/99 passed by the Appellant No. 2 in respect of the laying off of the employees of the Respondent No. 1 in terms of section 25-M of the Industrial Disputes Act was allowed. The learned single Judge while quashing and setting aside the impugned Order dated 5.1.99 passed by the Appellant had issued directions to him to consider afresh the case relating to the Application of Respondent No. 1 seeking permission to lay off the employees in terms of section 25-M of the Industrial Disputes Act after taking into consideration all the relevant factors of the case and after hearing the parties. Appellant No. 2 was actually directed to pass a reasoned order within three weeks from the date of communication of the order of the learned single Judge.
2. Brief facts leading to the filing of the Appeal may be summarised as herein-below:
Respondent No. 1 Messers Hindustan Motors Ltd. is an existing Company within the meaning of the Companies Act 1956. It has a passenger car manufacturing unit in the State of West Bengal. On 26th November. 1998 under sub-section(1) of section 25-M of the Industrial Disputes Act 1947 (Act for short) read with sub-Rule 1 of Rule 76A of the West Bengal Industrial Dispute Rules 1958, it applied to the respondents for permission to lay off for three working days in a week with immediate effect, it its factory at Hind Motor, employing a total of 11010 employees. Reasons in support of the application seeking the lay off were detailed in the annexures filed with the application. It was averred that because of severe recession in the Indian Automobile Industry as being currently faced, all the Automobile Manufacturers are being compelled to resort to steep production cuts and drastic cost reduction measures to remain afloat in the recessionary environment. For ready reference we extract herein-below para-1 of the annexure-A to the application spelling out the reasons for seeking laying off of the employees :
"You are aware of the severe recession the Indian Automobile Industry is currently facing. Even market leaders with highly productive and modern plants, including Maruti Udyog Ltd. have been compelled to resort to steep production cuts and drastic cost reduction measures to remain afloat in such a severe recessionary environment. Added to this, the entry of foreign automobile companies with the ability to sustain losses has aggravated the difficulties of indigenous automobile manufacturers like Hindustan Motors Limited. H.M. has to face not only the demand recession but also the competition from the second hand premium car market. As against the selling price of Rs. 3.5 lacs for a new Ambassador car, sparingly used second hand Premium Segment cars are available at Rs. 4 lac. These developments have jeopardised the production and sales of Hindustan Motors as given below."
3. The application dated 26/11 /98 was accompanied by various other documents and annexures. Oh 5.1.99 Applellant No. 2 Joint Secretary in the Labour Department, Government of West Bengal passed an order in terms of sub-section(4) of section 25-M of the Act in respect of the aforesaid application of Respondent No. 1 refusing to accord permission for laying off on the ground that no case for laying off as proposed by the Management of Respondent No. 1 was made out. This Order was communicated to Respondent No. 1 by the appellants through a covering letter dated 14th January '99. Immediately Respondent No. 1 challenged this Order by filing writ application under Article 226 of the Constitution before the learned single Judge who as noticed at the very beginning of this Judgment, vide Order dated 26th March '99 allowed the writ application partly by setting aside the order dated 5.1.99 and issuing directions to Appellant No. 2 to reconsider the matter. The prayer of the writ petitioner-respondent No. 1 for issuance of writ of Mandamus against the appellants for granting permission to it to implement the Scheme of lay off as proposed in its application dated 26.11.98 was not granted by the learned single Judge. Aggrieved, the Respondent No. 1 Writ petitioner has preferred cross-objections in the present Appeal in respect of the part of the Judgment of the learned single Judge whereby such prayer was not granted.
4. We have had the privilege of hearing very elaborate, lucid and detailed argument advanced by the learned Advocates appearing for the parties for, in support of and against the Judgment under appeal. While going through the operative part of the Judgment of the learned single Judge we found that the learned single Judge has made certain observations with regard to the impugned Order dated 5.1.99 which goes to the very basic edifice of the controversy between the parties touching upon the merits of the request of Respondent No. 1 for laying off its employees. The learned single Judge has made certain adverse comments about the portions of the Order dated 5.1.99 passed by the appellant No. 2 and has also made certain observations of his own with regard to the right of Respondent No. 1 about laying off the employees and not being compelled to carry on business knowing fully well that such carrying of such business would entail huge losses.
5. Undoubtedly the Order dated 5.01.99 was passed by appellant No. 2 in terms of sub-section (4) of Section 25-M of the Act. Sub-section (7) of section 25-M provides for exercising the power of Review of the Order passed under sub-section (4) or for adjudication of the matter by a Tribunal constituted under the Act. Sub-section (7) reads thus :-
"(7) The appropriate Government or the specified authority 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 (4) or refer the matter or, as the case may be, cause it to be referred, 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. Even though it was very vehemently argued before us on behalf of the appellants and the learned Advocates appearing for Respondents 3 & 4 that the writ application as filed was not maintainable because the Respondent No. 1 before approaching this Court had not availed of the alternative remedy as provided in sub-section (7) (supra). We wish to make no comments about this aspect of the matter, since in our considered opinion, even at this stage of litigation we are convinced that the interests of the parties can be properly protected and safeguarded by taking recourse to sub-section (7) (supra) and directing adjudication of the entire controversy afresh by an Industrial Tribunal as per subsection (7) of section 25-M of the Act. Mr. Bikash Bhattacharya, learned Senior Advocate appearing for the appellants has categorically stated before us that if this Court in the present Appeal decides that the matter be adjudicated by an Administrative Tribunal in terms of sub-section (7) (supra) the Appellants will have no hesitation at all in making a reference for such adjudication to such an Industrial Tribunal and that actually, the appellants would take immediate steps to ensure that such reference to the Industrial Tribunal is made effectively within 24 hours from the date this court disposes of the appeal. Industrial Tribunals, created under section 7A, read with section 7-C of the Act is an independent Judicial forum dealing with adjudication of various types of Industrial disputes between various parties under the Act. The Legislature by incorporating in sub-section (7)(supra) the provision either for review of the Order by the Government or the specified authority itself or by reference to the Industrial Tribunal for adjudication has clearly intended and indicated that if the aggrieved party in an application under section 25-M of the Act was not satisfied with the decision of the Government or the specified authority, as the case my be, it should have the benefit of an impartial adjudication of the matter at the hands of a Judicial Forurn like an Industrial Tribunal. The issues involved in the writ Application arising out of Respondent No. 1's application under section 25-M of the Act are indeed so intricate, factually speaking, that the facts and circumstances of this case it shall neither be possible nor desirable for this Court to go into such intricate disputed questions of fact and venture in the field of returning a finding, one way or the other about the laying off of the workmen. In a case of this nature it is not viable for this Court to embark upon such an exercise. Similarly from what we have noticed in the Order dated 5.1.99 as passed by Appellant No.2, we find that even Appellant No.2 does not appear to have been fully involved in a proper application of mind in deciding the issue regarding the grant of permission for laying off. The question of laying off being directly linked to section 2(kkk) of the Act, in the light of the parameters laid down there and in sub-sections (3) & (4) of section 25-M of the Act, in our opinion the Appellant No.2 did not properly address himself to such questions and such parameters and by misdirecting himself rejected the application of Respondent No.1 by refusing the request for laying off. Certain important and relevant facts as brought out by Respondent No.1 in the application do appear to have missed the attention and consideration of Appellant No.2. We have no doubt that these facts had a close and direct bearing, one way or the other, on the vital aspect as to whether the company should be allowed to lay off or not. Similarly we find the Appellant No.2 took into account such factors which were either not wholly germane to the issues involved or were extraneous as far as the relevant aspects of the matter were concerned.
7. We have made the aforesaid observations with regard to the Order dated 5.1.99 passed by the appellant No.2 only to indicate our disapproval of the manner in which appellant No.2 appears to have dealt with the issues involved in the application of respondent No.1. Similarly, from what we have seen in the Judgment of the learned single Judge under appeal, we find that the learned single Judge also has relied upon certain obsevations of his own in settling the controversy regarding setting aside of the Order passed by appellant No.2. We have no doubt that some of the observations made by the learned single Judge could have been best avoided since these had neither any support from the material on record nor were wholly relevant to the issues involved. We stop at that. We are doing so because we do not wish to offer any further comments, direct or indirect which may in any way tend to touch upon the merits of the controversy between the parties. Whatever observations we have made with regard to the Order passed by appellant No.2 or about the Order of the learned single Judge under appeal were made only to convince ourselves that even though the Order of appellant No.2 does in fact deserve to be set aside, but at the same time being in disagreement with the order of the learned single Judge, we should not send back the case for reconsideration to appellant No.2. Since we propose to send the case to the Tribunal in terms of sub-section (7) of section 25-M of the Act, it has been our most sincere endeavour to ensure that we steer clear of making any such observations or comments, much less deciding any issues in this appeal, which may directly of indirectly touch upon the merits of any controversy between the parties or may tend to influence the outcome of adjudication by the Tribunal. If in the process of either disapproving the approach adopted by appellant No.2, or while discussing the merits of the observations made by the learned single Judge in the judgment under appeal we have inadvertently strayed into making any un-war-ranted comments about the merits of the case, we must hasten to add that we had no intention of doing so and that the Tribunal while deciding the issues of controversy between the parties would and should totally ignore and overlook any such inadvertent observations or comments made by us and shall decide the issues totally uninfluenced by any such inadvertent observations or comments.
8. For the foregoing reasons therefore we partly allow the appeal, dismiss the cross-objetions and pass following orders :-
(1) Within 3 days from today the appellant shall make a reference to the Tribunal in terms of sub-section (7) of section 25-M of the Act for Tribunal's adjudication of the matter relating to the application of respondent forming the subject matter of the present appeal.
(2) The Tribunal, in terms of sub-section (7) of section 25-M of the Act shall pass Award within 30 days from the date of reference.
(3) The parties in this appeal and all others concerned in the subject matter of the Application of Respondent No.1 filed under section 25-M may file objections or other pleadings before the Tribunal within one week from the date it receives the Reference Order from the Government in terms of these directions. Time for filing such objections/ pleadings shall not be extended by the Tribunal.
Appeal finally disposed of. No order as to costs.
P.K. sen, J.
9. I agree, Later:
After the judgment was poronounced the learned Advocate for the respondent No.1 made an oral prayer for staying the operation of this order. On consideration the prayer is rejected. Let a xerox single copy of this Judgment, duly countersigned by the Assistant Registrar of this Court, be given to the parties upon their undertaking to apply for and obtain certified copy of the same upon usual undertaking.
10. Appeal disposed of