RASTRIYA GYPSUM MAJDOOR SANGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner by this writ petition has prayed that the respondent No. 2 may be restrained from effecting retrenchment of 61 Village Piece Workers referred in the Notice dated 18th December, 1985 (Anx. 4). In the alternative he has further prayed that the respondent No. 3 may be directed to produce before the court the report prepared by him regarding the retrenchment of these 61 Village Piece Workers and has prayed that the appropriate Government or Specified Authority may be directed not to grant permission to the respondent Company to effect the retrenchment of these workers under Section 25N of the Industrial Disputes Act.

(2.) THE respondent Rajasthan State Mines and Mineral Limited (to be referred hereinafter as the respondent Company)is a Government Undertaking. It has two Divisions, one is the Gypsum Division which undertakes extraction and sale of Gyspum. The Gypsum Division has several mines and one of them is at Jamsar in the District of Bikaner. The petitioner is a Union registered under the Trade Union Act. The respondent Company engages Village Piece Workers for the purposes of digging, filling, weighing and transporting the extracted Gypsum. These 61 workers are in service of the respondent Company for the last couple of years. That on account of an accident a workman made a claim under the Workmen Compensation Act and an enquiry was made by the Assistant Labour Commissioner and he found that the said workman was not an employee of the respondent Company. This raised a serious apprehension in the mind of the workmen that if ever an accident takes place in respect of any of these Village Piece Workers they will not be liable to claim compensation under the Workmen Compensation Act. That gave rise to a dispute between the management and the workers. The petitioner's contention is that on account of such dispute and disturbances between the management and the workers the management is going to close the mines and not on the basis that purity of Gypsum is going down to 50 per cent and the manufacturers of the cement are not going to accept the Gypsum, therefore the management is proposing to surrender the lease. The contention of the petitioner is that this is nothing but victimisation. The petitioner further submits that on account of this reason the company is proposed to close the unit but this is not the real reason. In these circumstances this writ petition has been filed. A reply has been filed by the respondent and it has been submitted that the present writ petition is pre -mature as the petitioner approached this court merely on account of filing an application by respondent before the Central Government, which is the appropriate Government for closure. It has further been submitted that the Central Government vide its order dated 28th February, 1986 (Annexure -A/3) has referred the matter for adjudication to the Industrial Tribunal, Jaipur. Thus, the respondent submits that the petitioner has an efficacious alternative remedy to join the dispute before the competent forum to ventilate their grievances. Mr. Mridul, learned Counsel for the petitioner docs not dispute that the matter has been referred by the appropriate Government for adjudication to the Industrial Tribunal, but he submits that he has filed the present writ petition for the purpose of enforcing his right available under Sub -section (3) of Section 25N. According to Sub -section (3) of Section 25N of the Industrial Disputes Act the Competent Authority before passing any order has to hear the employees as well as the mangement. No such hearing was given by the authority. It is true that Sub -section (3) of Section 25N envisages that the grant or refusal of permission by the Competent Authority can be made after hearing both the parties but at the same time Sub -section (4) of Section 25N further contemplated that if such permission is not granted to the employer within a period of sixty days from the date on which such application is made the permission applied for shall deemed to have been granted on the expiration of the said period of sixty days. Sub -section (6) of Section 25N further contemplates that the Central Government may refer the matter for adjudication also. Since the Central Government has referred the matter for adjudication under Sub -section (6), then it will not be a fair exercise of discretion to interfere with the matter at this stage. It is true that under Sub -section (3) of Section 25N a mandate is contained that the appropriate Government will decide the matter of grant or refusal of permission for closure after hearing both the parties but at the same time Sub -section (4) of Section 25N further contemplates that if such a decision is not being taken within a period of sixty days from the date of such application made by the employer then the permission will be automatically deemed to have been granted. If the Legislature has provided to for this contingency that if the appropriate Government does not decide the matter within a period of sixty days from the date of making of such application by the employer then the permission will have to be deemed to have been granted automatically after expiry of sixty days period, then this court cannot re -draft or ingraft the provision to the contrary. Thus, at this stage no such direction can be given to the appropriate Government to reconsider the matter under Sub -section (3) of Section 24N because that stage has already passed. More over since the appropriate Government has already referred the matter under Sub -section (6) of Section 25N for adjudication before the Industrial Tribunal, Jaipur and the matter is pending then it will not be fair exercise of jurisdiction to interfere with the discretion of the Tribunal at this stage. Mr. Mridul learned Counsel for the petitioner further submitted that under proviso to Sub -section (6) of Section 25N the Tribunal has to decide the matter within a period of 30 days and that period has already expired therefore, the Tribunal ceased to have any jurisdiction. I am afraid this contention cannot be up held. Period of 30 days cannot be a mandatory period so as to oust the jurisdiction of the Tribunal. It is a directory provision that the matter should be decided within a period of 30 days otherwise this will render Sub -section (6) otios. In this connection reference may be made to the case of Association of Engineering Workers v. Indian Hose Pipe Co. Ltd. (1). In that case similar question squarely fell for consideration and is has been held that this proviso to Sub -section (6) of Section 25N is directory and not mandatory. It has been held as under: Industrial Disputes Act, Section 25N(6), proviso: Industrial Tribunal was right in holding the Section 25N(6) of the Act, which requires the Tribunal to pass an award within a period of thirty days from the date of reference is directory and not mandatory and, therefore, on the expiry of the said time limit the reference will not lapse but will survive for adjudication. Thus, this contention of the learned Counsel is rejected.