AVTEC LIMITED Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The present Writ Appeal is filed under Sec. 2(2) of Madhya Pradesh Uchcha Nyayalaya Khandpeeth Ko Appeal Adhiniyam 2005 being aggrieved by the order dtd. 21/10/2021 passed in WP No.5344/2020 by which the writ petition filed by the respondent No.3 and 4 has been allowed and the order dtd. 17/2/2020 rejecting reference application u/S.25-N(6) has been set aside and the respondent No.2 has been directed to refer the dispute to the Tribunal for adjudication.

(2.) Facts of the case are that the appellant AVTEC Limited submitted an application on 25/10/2019 u/S.25-N of the Industrial Disputes Act, 1947 (hereinafter referred as 'Act') seeking permission for retrenchment of workmen from its Pithampur plant. The notices were issued by the Labour Commissioner and on an objection raised by the Union/Workmen, the said application was rejected for want of procedure and liberty was granted to the appellant to file fresh application u/S.25-N of the Act. The respondent No.3 Union moved an application for reference on the said order whereby the appellant was permitted to file fresh application. Since the application filed by the appellant was not rejected and, therefore, no reference could have been made to industrial court. The reference is permissible against an order granting or refusing to grant permission for retrenchment, however, Union challenged the order dtd. 19/12/2019 in WP No.247/2020 before this Court and since the permission for retrenchment was already granted during the pendency of the petition the said petition was dismissed having been rendered infructuous by order dtd. 7/2/2020. According to the appellant, the plant was facing financial problem and was struggling for its existence and, therefore, the application for permission for retrenchment was filed u/S.25-N of the Act. It was also stated that appellant faced dire financial conditions and accumulated loss of Rs.141.19 crores in the last six financial years between 2013-2014 to 2018-2019 and, therefore, sought permission for retrenchment of 217 workmen out of 356 workmen. The authority specified in the Act vide its order dtd. 3/2/2020 passed an order granting permission to appellant to retrench 217 workmen as had been applied for. After passing the order dtd. 3/2/2020 the respondent Union and the workmen had submitted an application seeking reference to the industrial tribunal and few workmen submitted application seeking review of the order as per the provisions of Sec.25-N(6) of the Act. Specified authority by order dtd. 14/2/2020 rejected the application submitted by three workmen and decided not to review the order on the application and also rejected the application for reference filed by respondent No.3 and 4 on the ground that since the application for review has already been refused and, therefore, the prayer for reference at the instance of the respondent No.3 and 4 cannot be decided as per the provisions of Sec.25-N(6) and the law laid down by the division bench of this court in WP No.1368/1997 Ujjain Mill Mazdoor Sangh and others Vs. State of MP (1999) 1 LLJ 1197 (MP) wherein it has been held that in Sec.25-N(6) it is not mandatory for the authority to refer the case to the tribunal. This is voluntary provision and since by speaking order the prayer for review has already been rejected filed by three employees, the application for reference filed by the respondents No.3 and 4 was rejected. It was further held that there is no propriety or legal basis for the trial on the same point as the detailed speaking order has been passed as per the provisions of Sec.25-N(3) of the Act. Being aggrieved by the said order, the respondent No.3 and 4 filed a Writ petition No.5344/2020 and challenged the order and sought relief of quashment of orders Annexure P/5 and P/8 by which the reference was declined and sought a direction to the respondent No.2 to refer the matter for adjudication to the industrial tribunal.

(3.) Senior Counsel for the appellant submitted that before the specified authority there were two applications; one set of application was filed by the three employees for review of the order for permission of retrenchment and the other application was filed by respondent No.3 and 4 seeking a reference to the tribunal. The authority had discretion to decide either of the application and the authority decided the review application and dismissed the same and on the same date after affording opportunity to the respondent No.3 and 4 also decided the application filed by respondent No.3 and 4 declining reference on the ground that the review filed by the other employees has already been rejected. It is argued that once the review application was decided, as per the provisions of Sec.25-N(6) the reference cannot be granted. The order passed by the learned Single Judge is contrary to the judgment passed by the division bench of this court in the case of Ujjain Mill Mazdoor Sangh (supra) and the judgment passed by the Apex Court in the case of Cable Corporation of India Ltd Vs. Addl. Commissioner of Labour and others (2008) 7 SCC 680 where it has been held that once the application for review has been dismissed, the appropriate authority cannot refer the dispute to the industrial tribunal for adjudication. Only two options are available to the specified authorities either to consider the review application or to reference application for adjudication to the industrial tribunal. After exercising one option another cannot be exercised. He referred to paragraphs five to twelve of the said judgment and submitted that in view of the aforesaid paragraphs there can either review or a reference but not both. He also argued that in Cable Corporation of India (supra) the Court observed that had the legislature intended that the reference could be made after the government or the specified authority deals with the review power, it would have said so specially by specified words. It could have provided for a direct reference. The parameters of review are different from a reference, therefore, the legislature has not provided for a direct reference and the power has vested with the specified authority either to invoke the power of review or a reference, then it is not open for judicial scrutiny. He also referred para 15 of the said judgment and submitted that the Apex Court has opined that it is the domain of specified authority either to decide, review or refer the matter to the tribunal and such discretionary power cannot be subjected to judicial scrutiny. Learned counsel for appellant further asservated that the Division Bench of this court in the case of Ujjain Mill Mazdoor Sangh (supra) in para 6 and 7 held that the appropriate government may either on its own motion or on the application made by the employer or any workman, review its order for granting or refusing to grant permission under Sec. 2 or refer the matter to the Tribunal for adjudication. The word 'may' makes it optional for the government to either review the order granting or refusing permission for closure or to refer the matter to the tribunal for adjudication. It is not mandatory for the government to resort to both options simultaneously or one after the other. The word 'or' assumes significance in this context. It may or may not resort to either option or may take one option. When it elects to take review option that ends the matter. It cannot be then asked to take recourse to make reference to the Tribunal. There could be cases where word 'may' used in the provision could be treated directory as done by the Rajasthan High Court but that would depend upon the facts and circumstances of each case. In any case, the employee cannot ask for either option as a matter of right more so when one option of review stands exhausted.