BRITANNIA INDUSTRIES LTD Vs. MAHARASHTRA GENERAL KAMGAR UNION

JUDGEMENT

(1.) WHILE construing the provisions of section 25-O of the Industrial Disputes Act, 1947 (hereinafter for brevity referred to as the 'act'), learned Single Judge of this Court took a view that on a Reference under section 25-O, the application for closure is referred and not merely the order passed by the appropriate Government and the Industrial Tribunal would have, therefore, to consider the application for closure de novo (Voltas Employees Union vs. Voltas Limited and another, 2003 (5) Mh. L. J. 43 = 2002 (11) CLR 140 ). In Tilah nagar Industries Limited vs. The Commissioner of Labour, Maharashtra State and others, Writ Petition No. 2426 of 2004 (Aurangabad Bench) decided on 6-5-2004, the learned Judge further held that when the Government or Specified Authority decides to review the order and makes a Reference, the whole matter is referred to the Industrial Tribunal for adjudication. It is the application under section 25-O (l)itself which is referred and once a Reference under section 25-O (5) is made, the order passed under sub-section (2) automatically gets eclipsed and achieves finality on the conclusion of the matter by the Tribunal. The Reference is not of the order but of the application. In Mahalaxmi Glass Works Pvt. Ltd. vs. State of Maharashtra and others, 2007 (III) CLR 43, the view stated was that the entire dispute was to be adjudicated where Reference is made and the order passed under section 25-O (2)allowing closure is kept in cold storage or in abeyance.

(2.) WHILE finding it difficult to follow the principles stated by the learned Judges on the construction and interpretation of section 25-O of the Act in the matter of review and/or Reference, another Single Judge of this Court while referring to the provisions and scheme of the Act, decided to refer the matter for decision to a larger Bench. The respondents even raised an objection to the very maintainability of the present reference. It is contended that in the light of the dictum of law stated by a Full Bench of this Court in the case of Karim Abdul vs. Shehnaz Karim (2005) 5 Bom. CR 758, which is in line with the view taken by the Supreme Court in the case of General Finance Co. and another vs. Assistant Commissioner, Income tax, Punjab, 2002 (7) SCC 1 and central Board of Dawoodi Bohra Community vs. State of Maharashtra, 2005 (2) SCC 673 there being an uninterrupted long standing view and practice, the learned single judge ought not to have referred the matter to the Full Bench. To meet this argument, it was contended on behalf of the petitioners that the view taken by the learned Single judges is not in conformity with the observations made in the judgment of the Division bench of this Court in the case of Association of Engineering Workers vs. Indian Hume pipe Company Ltd. and others, 1986 Mh. L. J. 34 = (1985) IL. L. J. 450 which states a distinct principle of law though with reference to the provisions of section 25n of the act but the provisions of section 25n being pan materia to section 25-O, the Reference is valid. It is also argued that the questions formulated in the order of Reference are otherwise questions of great importance and arise before the Courts repeatedly. Thus, it would be in the interest of justice to clearly state the principles of law governing therein. The principles of law stated in the judgments relied upon by the respondents can hardly be disputed. As a rule of law and practice, a smaller Bench is not expected to differ with the law enunciated by a larger Bench. Normally, only a Bench of equal strength can make a Reference to a Larger Bench and that too for valid reasons, by referring the matter to the Chief Justice who has to pass an order in accordance with Rule 7 of chapter I of Part I of the Bombay High Court, Appellate Side Rules, 1960. Same rule exists on High Court Original Side Rules being Rule 28 of the Bombay High Court (Original Side) Rules, 1980. In the present case, this Court is concerned with the ambit, scope and interpretation of provisions of section 25-O of the Act. A Single Judge of this court is in respectful disagreement with the view taken in all the three judgments by the learned Single Judges of this Court referred above and opted to refer the matter to the larger Bench keeping in view the importance of the questions formulated in the order of reference. It is not in dispute before us that except the view taken by the learned Single judges of this Court, there is no ruling of any Division Bench or larger Bench of this court with reference to the question referred in relation to the provisions of section 25-0 of the Act except Association of Engineering Workers vs. Indian Hume Pipe Company ltd. (supra ). Merely because the Courts have taken a view over a period of time, per se, is no ground for holding that the reference is not maintainable. It is said that judicial dissent in conformity with principles of judicial discipline and binding precedent helps in the development of law. It is a different matter what view the Court takes on the merits of the Reference. However, keeping in view the larger interest of administration of justice, importance of the legal questions framed in the order of Reference and the fact that there is every likelihood of these questions arising before the Courts as well as industrial Courts and the Government repeatedly, we find ourselves duty bound to provide answers to the questions formulated so as to settle the position of law as far as state of Maharashtra is concerned.

(3.) ON 10th September, 2008, the learned Single Judge while expressing dissent to the view expressed by the three learned Single Judges as afore noticed, passed the following order of Reference :