Hindalco
Industries Ltd. Vs. Union of India & Ors [2003] Insc 595
(27 November 2003)
K.G.
Balakrishnan & P.Venkatarama Reddi K.G. Balakrishnan, J.
The
appellant is a Public Limited Company having its registered office at Bombay, engaged in the business of
producing aluminium metal and its alloys and its factory is located at Renukoot
in Uttar Pradesh. Bauxite being a raw material required for the manufacture of aluminium,
the appellant obtained various mining leases in Bihar under the provisions of the Mines & Minerals
Regulations and Development Act, 1957. Appellant was thus having a bauxite
mining lease which was known as Maidanpat Bauxite Mine. The mining operations
at the Maidanpat Bauxite Mine were being done in forest land as well as
non-forest land. On 24th
July, 1993, the
Divisional Forest Officer, Ranchi West Forest Division, issued a letter to the
appellant to stop the mining activities in the forest land of the Maidanpat
Bauxite Mines. The appellant was asked to submit map and the records for decision
to be taken in the matter. The appellant sent a reply stating that their lease
was valid upto January, 1997 and that they may be permitted to continue mining
operations. According to the appellant, the Divisional Forest Officer did not
accede to its request and the mining operations were abruptly stopped and as
there was no work for the workmen, a lay off was declared from 31st July, 1993. The appellant alleged that lay off
compensation was paid to the workmen.
The
learned counsel for the appellant further contended that request was made to
the forest authorities but no favourable response was received from them and
the appellant had to close the mine w.e.f. 19th August, 1993 and this fact was intimated to the
Divisional Forest Officer on 20th August, 1993.
Thereafter,
a notice of closure under Section 25-FFF of the Industrial Disputes Act, 1947
(hereinafter being referred as "the I.D. Act") was sent to the
concerned authorities. The appellant further contended that though Section 25-O
of the I.D. Act had no application, in abundant caution the appellant made an
application to the Union of India for permission to effect closure. The
application filed by the appellant was not entertained, as it was not filed
within ninety days before the date of intended closure. The appellant
thereafter explained the position of closing of the mine on 19th August, 1993 for which the permission could not
be obtained in advance. The first respondent after hearing the appellant as
well as the representatives of the workmen passed an order on 6th December, 1993. In that Order passed by the first
respondent, the permission was granted subject to the following conditions:-
(i)
The closure would be as per provisions of Section 25-O of the Industrial
Disputes Act, 1947;
(ii)
Compensation and notice salary would have to be paid to the workmen as per
provisions contained under Section 25-O(8) of the Industrial Disputes Act,
1947;
(iii)
Whenever a fresh permission is granted to the Management for mining in the
State of Bihar, the retrenched workmen would be employed as per the provisions
contained in Section 25-H of the Industrial Disputes Act.
This
permission shall take effect from the date of issue of this letter." The
appellant challenged the order of the first respondent dated 6th December, 1993
before the High Court by contending that Section 25-O of the I.D. Act had no
application to the facts of the case as the closure of the work was not
intended by the appellant but as a result of the direction given by the
Divisional Forest Officer. According to the appellant, a voluntarily, planned
and intended closure of an undertaking alone would attract Section 25-O of the
I.D.
Act
and only under such circumstances, prior permission of at least ninety days
before the date of intended closure is required to be obtained by the employer.
The
appellant had also contended before the High Court that the various conditions
incorporated in the impugned order of the first respondent were not warranted.
But all the pleas raised by the appellant were rejected by the Division Bench
of the High Court and aggrieved by the same, the present appeal is filed.
We
heard the learned Counsel for the appellant and also the learned Counsel for
the Union of India as well as for the workmen. The learned Counsel for the
appellant strenuously contended before us that Section 25-O of the I.D. Act has
no application and no prior permission was required for the closure of the
mining activities as the appellant never intended to close it down before the
expiry of the lease period. The learned Counsel for the appellant further
contended that as Section 25-O of the I.D. Act has no application, the
appellant is liable to pay compensation to the workmen only under Section
25-FFF of the I.D. Act. On a closer analysis of the various provisions
contained in the I.D. Act, it is clear that the pleas raised by the appellant
are not acceptable. Section 25-O of the I.D. Act reads as follows:- 25-O
"(1)An
employer who intends to close down an undertaking of an industrial
establishment to which this Chapter applies shall, in the prescribed manner,
apply, for prior permission at least ninety days before the date on which the
intended closure is to become effective, to the appropriate Government, stating
clearly the reasons for the intended closure of the undertaking and a copy of
such application shall also be served simultaneously on the representatives of
the workmen in the prescribed manner:
Provided
that nothing in this sub-section shall apply to an undertaking set up for the
construction of buildings, bridges, roads, canals, dams or for other
construction work.
(2)
Where an application for permission has been made under sub- section (1), the
appropriate Government, after making such enquiry as it thinks fit and after
giving a reasonable opportunity of being heard to the employer, the workmen and
persons interested in such closure may, having regard to the genuineness and
adequacy of the reasons stated by the employer, the interests of the general
public and all other relevant factors, by order and for reasons to be recorded
in writing, grant or refuse to grant such permission and a copy of such order
shall be communicated to the employer and the workmen.
(3)
Where an application has been made under sub-section (1) and the appropriate
Government does not communicate the order granting or refusing to grant
permission to the employer within a period of sixty days from the date on which
such application is made, the permission applied for shall be deemed to have
been granted on the expiration of the said period of sixty days.
(4) An
order of the appropriate Government granting or refusing to grant permission
shall, subject to the provisions of sub-section (5), be final and binding on
all the parties and shall remain in force for one year from the date of such
order.
(5)
The appropriate Government 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 (2) or refer the matter 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)
Where no application for permission under sub-section (1) is made within the
period specified therein or where the permission for closure has been refused,
the closure of the undertaking shall be deemed to be illegal from the date of
closure and the workmen shall be entitled to all the benefits under any law for
the time being in force as if the undertaking had not been closed down.
(7)
Notwithstanding anything contained in the foregoing provisions of this section,
the appropriate Government may, if it is satisfied that owing to such
exceptional circumstances as accident in the undertaking or death of the
employer or the like it is necessary so to do, by order, direct that the
provisions of sub-section (1) shall not apply in relation to such undertaking
for such period as may be specified in the order.
(8)
Where an undertaking is permitted to be closed down under sub- section (2) or
where permission for closure is deemed to be granted under sub-section (3),
every workman who is employed in that undertaking immediately before the date
of application for permission under this section, shall be entitled to receive
compensation which shall be equivalent to fifteen days' average pay for every
completed year of continuous service or any part thereof in excess of six
months."
Section
25-O states that if an employer intends to close down an undertaking of an
industrial establishment, he shall seek permission at least ninety days before
the date of intended closure is to become effective. The reason for the
intended closure also should be given in detail and the copy of such application
shall be served on the representatives of the workmen in the prescribed manner.
The contention of the appellant that Section 25-O would apply only to a
voluntary and intended closure of an undertaking is without any force. If the
undertaking of an industrial establishment is to be closed for reasons beyond
the control of the employer, provisions have been made under sub- Section 7 of
Section 25-O of the I.D. Act. In the present case, the appellant was asked to
stop the mining activities in the forest land by the Divisional Forest Officer
by letter dated 24th
July 1993. This letter
does not say that the mining activity shall be closed immediately or with
effect from any particular date. The appellant was asked to produce map and
other relevant records within a period of 5 days and it is important to note
that the appellant declared lay off on 31st July, 1993 itself and according to the appellant,
the mines were closed on 19th
August, 1993. In the
letter dated 24th July,
1993, it is stated
that the decision would be taken after the receipt of the records from the
appellant. No order has been produced by the appellant to show from which date
the mining operations were directed to be stopped by the forest authorities.
The appellant has also not produced any other documents. From these facts also,
it is not very clear whether the appellant was disabled from obtaining prior
permission of the first respondent at least ninety days before the date of
closure of the mining operations.
The
next contention urged by the appellant's learned Counsel is that the mining
operations were stopped due to unavoidable circumstances, and, therefore, the
appellant is liable to pay compensation only under Section 25-FFF of the I.D.
Act. This plea is also devoid of merit in view of the specific Section 25- K of
the I.D. Act. Section 25-K Chapter V-B reads as under:- 25K.(1) The provisions
of this Chapter shall apply to an industrial establishment (not being an
establishment of a seasonal character or in which work is performed only
intermittently) in which not less than [one hundred] workmen were employed on
an average per working day for the preceding twelve months.
(2) If
a question arises whether an industrial establishment is of a seasonal
character or whether work is performed therein only intermittently, the
decision of the appropriate Government thereon shall be final."
Admittedly, the appellant had an establishment where more than 100 workmen were
employed on an average per working day. This fact is not disputed by the appellant.
In that event, the provisions contained in Chapter V-B of the I.D. Act would
apply to the appellant. Section 25-O being the provision contained in Chapter
V-B of the I.D. Act, they are the relevant provisions regarding the procedure
for closing down of an undertaking. This clearly shows that Section 25-FFA and
Section 25-FFF of Chapter V-A would not apply in respect of the closure of the
mining operations of the appellant. The appellant admits that about 211
employees had been retrenched. Under sub-Section 8 of Section 25-O special
provision has been made for the payment of compensation to workers when a
permission for closure is granted.
In
view of the aforesaid circumstances, the plea of the appellant that Section
25-O of the I.D. Act applies to only planned and intended closure by the
employer is devoid of merits and Section 25-O of the I.D. Act will govern the
situation. We find no error of jurisdiction or illegality in the impugned
judgment.
The
appeal is without any merits and is dismissed. If the workers are not so far
paid their due compensation, the appellant shall pay the same within a period
of two months.
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