JAYHIND ENGINEERING Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE appellant in these Appeals were the petitioners in Writ Petitions No. 36102-103 of 1997. In these appeals the appellants have called in question the correctness of the Order dated 20/03/1999 made by the learned single Judge in the Writ Petitions.

(2.) FACTS in brief leading to these Writ appeals, may be stated as hereunder: the first Appellant-Jayhind Engineering (hereinafter referred to as 'the appellant-Firm') is a registered Partnership firm and it has set up one of its factories, which is known as 'unit-F at Industrial Estate, udyambag, Belgam. In Unit-I of the appellant-Firm, there are seven separate sections. Crankshaft Light Bay and development sections are the two out of the seven sections in the factory. It is claimed by the Appellant-Firm that each section is separate. The activities of each section are independent and there is no inter-dependability between each of the sections and the workmen of each section are exclusive and if any one of the section closes, the other section will function without any problem. The appellant-Firm made an application on 29/08/1997, a copy of which has been produced as Annexure-A to these appeals, before the first respondent-State Government (hereinafter referred to as 'the State Government') under section 25-O of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act')seeking permission to close down Crank-shaft light Bay and Development Section on the grounds that the appellant-Firm was unable to continue its full activities on account of the circumstances beyond its control; and in spite of best efforts made by it, the existing machinery in those sections having worn out and not giving the desired output on account of wear and tear and replacing of those machinery with modern equipment would require heavy investments and the appellant-Firm is not in a position to make heavy investment to replace the machinery, etc. However, the application filed was returned by the State Government to the appellant-Firm on 19/09/1997, a copy of which has been produced as annexure-B to these appeals which was received by the appellant-Firm on 23/09/1997, on the ground that the copy of the application was not served on the representative of the 3rd respondent-workmen hereinafter referred to as 'the workmen') as required under sub-section (1) of Section 25-O of the Act. The appellant-Firm re-presented the application before the State Government on 24/09/1997, a copy of which has been produced as annexure-C to these Appeals, along with a covering letter, which was received by the State government on 26/09/1997. While re-presenting the application, the appellant-Firm pointed out that the copy of the application Annexure-A was sent through 'registered Post, Acknowledgment Due' to the representative of the workmen on 29/08/1997, which was received by the representative of the workman on 30/08/1997, and as such, statutory notice required to be given by the appellant-Firm was complied with on 29/08/1997 itself, and since the prescribed form did not contain any column requiring the appellant-Firm to state about serving of the copy of the application to the representative of the workmen, the same could not be mentioned in the application filed by the appellant- Firm before the State Government. After the receipt of the re-presented application, the State government sent notice dated 7/11/1997 fixing the hearing of application on 14/11/1997. Thereafter the State government, after hearing the appellant-Firm and the representative of the workmen, made an order dated 11/12/1997, a copy of which has been produced as Annexure-L to these appeals, rejecting the application filed by the appellant-Firm seeking permission to close down the two Units of the appellant-Firm. The writ Petitions filed by the appellant-Firm challenging the correctness of Order annexure-L having been dismissed, the appellants have filed these appeals.

(3.) SRI S. Vijay Shankar, learned senior advocate appearing along with Sri B. C. Prabhakar, learned counsel appearing for the appellants, challenging the correctness of the impugned order made by the learned single judge, made three submissions. Firstly, he submitted that since the application was filed by the appellant-Firm on 29/08/1997 after serving a copy of the application on the representative of the workmen and since there was no order made communicating the decision of the State Government refusing to grant permission to the appellant-Firm within the period of sixty days from the date on which application Annexure-A was made, i. e. within sixty days from 30/08/1997, the permission sought for by the appellant-Firm to close down the Units is deemed to have been granted by the State Government; and therefore the Order Annexure-L passed after the expiry of sixty days prescribed under sub-section (3)of Section 25-O of the Act must be held to be totally illegal and the one made without the authority of law. Elaborating this submission, the learned counsel pointed out that since the statutory requirement of serving a copy of the application on the representative of the workmen was admittedly having been complied with, the State Government had erred in law in returning the application to the appellant-Firm and the error committed by the State government should not be put against the appellant-Firm to deny the benefit of deemed permission statutorily available to the appellant-Firm. It is also his submission that since it is admitted by the representative of the workmen in the statement of objections filed that the appellant-Firm had the benefit of the deemed permission, the learned single Judge has seriously erred in law in holding that the appellant-Firm was not entitled for deemed permission for closure of the Units in terms of sub-section (3) of Section 25-O of the Act. Secondly, he pointed out that since admittedly the application Annexure-A re-presented by the appellant-Firm was received by the State government on 30/09/1997 and the order Annexure-L was passed only on 11/12/1997, i. e. , beyond sixty days prescribed under sub-section (3) of Section 25-O of the Act, the permission sought also is deemed to have been granted. The learned counsel pointed out that the reasons assigned by the learned single Judge to reject this contention of the appellants is totally erroneous in law inasmuch as the learned single Judge has erred in taking the view that once the notice for enquiry was issued, the 'deemed permission' cannot be set in to nullify the enquiry. The learned counsel submitted that a duty is cast on the State Government to make an order within sixty days from the date of application; and fixation of date of enquiry will not arrest the time prescribed for the benefit of deemed permission available to the appellant under sub-section (3) of Section 25-O of the Act. In support of his submission the learned counsel relied upon the judgment of the Supreme Court in the case of State of Haryana v. Hitkari potteries Ltd. , reported in 2001 (10) SCC 74 : 2001-II-LLJ-425. Finally, he pointed out that the conclusion reached by the learned single judge that even if the deemed permission is granted, it would be available only for a period of one year and the period having been expired long before the hearing of the writ petition, the order Annexure-L must be held to have spent itself and is erroneous in law. It is his submission that since the order Annexure-L would seriously affect the rights of the appellant-Firm, the learned single Judge should have examined the correctness of the Order annexure-L on merits and on such examination he ought to have held that Order Annexure-L is liable to be quashed on the ground that the same came to be passed without application of mind.