Anand, J.
1. The ambit and scope of Section 25-O(5) of the Industrial Disputes Act, 1947 (hereinafter called the Act), is the pivotal question requiring determination at our hands in this writ appeal which is directed against the judgment of a learned Single judge in writ Petition No. 15835 of 1990, decided on 25 October 1990. The circumstances under which the question arises for our determination need a brief notice at the threshold.
2. The workmen of Kempf (India), Ltd, through their union, were the petitioners in the writ petition. For convenience sake, we shall refer to them as the workmen; the second respondent in the writ petition was the management of Kempf (India), Ltd., represented by its Managing Director and for convenience sake, we shall refer to it as the management; the third respondent in the writ petition is another union of workers, which was represented by its secretary, and we shall refer to it as the workers' union, in this judgment.
3. The management industry was established in 1975 for the manufacture of propeller shafts and universal cross kits for various automobile vehicles. There was a dispute regarding the payment of bonous for the year 1986-87, when the workmen went on strike with effect from 20 October 1987. Following conciliation proceedings before the Joint Commissioner of Labour, the workmen resumed duty with effect from 8 April 1988, though the bonus issue remained unsettled. Later on, the management declared a lockout with effect from 31 July 1989 which, according to the workmen, was illegal. Conciliation proceedings were initiated on a dispute raised by the workmen. The management applied to the Government of Tamil Nadu on 16 April 1990, through the Commissioner of Labour for permission to close down their unit under Section 25-O(1) of the Act. The competent authority, after giving opportunity of being heard to the management and the workmen and other interested persons including the worker's union, in the matter of the management's application, dated 16 April 1990, and conducting an enquiry, by a reasoned order, dated 9 June 1990, refused to grant the permission to the management to close the unit. A copy of the order as per the mandate of Sub-section (2) of Section 25-O of the Act, was communicated both to the management and the workmen. The management, thereafter, filed an 'appeal' to the Government of Tamil Nadu, which was treated as an application for 'review' under Section 25-O(5) of the Act and the first respondent, the Government of Tamil Nadu, thereupon passed an order, G.O. (ID) No. 269, Labour and Employment Department, dated 6 September 1990, and referred the following dispute to the Industrial Tribunal:
'Whether the demand of the management of kempf (India), Ltd, Coimbatore, to close down its unit is justified and to what relief the management and the workmen are entitled.'
The aforesaid Government Order, which was made without notice to the workmen, was questioned through Writ Petition No. 15835 of 1990 by the workmen. The writ petition was dismissed against which the present appeal has been filed.
4. Sri V. Prakash, learned counsel for the appellant, both before the learned Single Judge as well as before us, challenged the Government Order, G.O.(ID) No.269, dated 6 September 1990, principally on the ground that the workmen had not been heard before the passing of the order. This plea failed before the learned single Judge who opined that since the matter had been referred to the Industrial Tribunal under the second part of Section 25-O(5) of the Act, the workmen would have an opportunity of being heard before the Tribunal before a final decision is taken and, therefore, they had no cause to complain of not being heard before the matter was referred to the Industrial Tribunal. It is in this context that the question of the ambit and scope of Section 25-O(5) of the Act has arisen before us. Before we proceed to discuss the same, it would be desirable to notice some of the relevant provisions of Section 25-O of the Act, as amended from time to time.
'25-O. Procedure for closing down an undertaking :- (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 representative 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 the 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 andthe workmen.
* * * * (4) An order of the appropriate Government granting or refusing to grant permission shall, subject to the provision 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 work man, 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.''
5. A plain reading of the aforesaid provisions would show that every employer is required to make an application, except in certain specified circumstances, to the appropriate Government, ninety days prior to the proposed closure of an undertaking of an industrial establishment, seeking permission for such closure. Vide Sub-section (2), the Government shall, after making due enquiries and after giving reasonable opportunity of being heard to the parties concerned, consider the genuineness and adequacy of the reasons given in the application and make an order, after recording the reasons, either granting or refusing permission. The copy of the order is required to be communicated to both the workmen and the employer. Vide Sub-section (4), the order of the appropriate Government granting or refusing to grant permission is, subject to the provisions of Sub-section (5), final and binding on all the parties and such an order shall remain in force for one year from the date of the order. Sub-section (5) thereafter empowers the Government to review its order, either suo motu or on an application made to it by the employer or any workmen, or it may refer the matter to a Tribunal for adjudication and in that event, the Tribunal shall make an order within thirty days from the date of the reference. This, generally speaking, is the scheme of Section 25-O of the Act, which is a complete code with respect to the provisions relating to closure of undertakings. The Act does not provide for an appeal or revision against an order made under Section 25-O(2). There is only a provision for review under Section 25-O(5) of the Act. Rules have also been framed under the Act and Rule 61B of the Tamil Nadu Industrial Disputes Rules, 1958, lays down as follows:
''Application for permission for closure:-(1) Application for permission to close down an undertaking under Sub-section (1) of Section 25-O shall be made in Form R-4 and delivered to the State Government either personally or by registered post with acknowledgement due and where the application is sent by registered post, the date on which the same is delivered to the State Government shall be deemed to be the date on which the application has been made for the purpose of Sub-section (3) of the said section.
(2) The application for permission shall be made in triplicate in Form R-4. A copy of such application shall be served simultaneously by registered post on the president or secretary of registered trade union(s) functioning in the establishment and a notice in this regard shall also be displayed conspicuously by the employer on a notice board at the main entrance to the establishment for the information of all the concerned workmen at the same time when applications are served on the State Government.
(3) The employer concerned shall furnish to the State Government to whom the application for permission to close down has been made, such further information as that Government considers necessary, for arriving at a decision on the application.'
6. On its plain phraseology, Section 25-O(5) of the Act does not provide for any right of hearing to be given to either of the parties when the appropriate Government, either on its own motion or on an application made by the employer or the workman, reviews its order granting or refusing to grant permission. It does not specifically provide for any notice to be issued to either party while exercising power under Section 25-O(5) of the Act. Sub-section (5) also does not provide for reasons to be recorded in the review order made under that sub-section. According to Sri M. R. Narayanaswamy, learned senior counsel appearing for the management, the Legislature having not provided for either a notice or a right of hearing or the recording of reasons in an order under Section 25-O(5), it is not permissible for the Courts to import those requirements in the provisions. In the alternative, learned counsel went on to argue that even if it be assumed that the appropriate Government cannot review its order made under Section 25-O(2) of the Act, without issuing notice and hearing the parties and recording reasons in support of the review order, in the facts and circumstances of the present case, since the order passed by the Government under Section 25-O(2) of the Act had not, in fact, been reviewed and the matter was referred to the Tribunal, where the parties would have their say, and the whole matter was at large, no complaint could be made by the workmen of not being heard before the reference was made as that, by itself, did not affect any of the rights of the workmen. Learned counsel submitted that the reference of the dispute for adjudication to the Tribunal, under the facts and circumstances of the case, did not involve any civil consequence and, therefore, the order could be said to be vitiated for non-observance of the principles of natural justice even if the same were to be read into the provisions of Section 25-O(5) of the Act. According to the learned counsel, on the analogy of a reference under Section 10 of the Act, which does not require the issuance of notice to the parties, the making of reference under the second part of Section 25-O(5) of the Act also would not require a right of pre-hearing. He referred to some judgments, which we shall deal with at the appropriate place in this judgment.
7. Sri V. Prakash, learned counsel for the workmen, on the other hand, argued that since the workmen had the benefit of the order, dated 9 June 1990, refusing permission to the management to close down the undertaking, the order impugned in the writ petition adversely affected their rights and the same could not have been passed without hearing the parties. Argued, learned counsel that when the State Government chooses to look into its earlier order, it could so choose only after hearing the parties and that the principles of natural justice must be read into Sub-section (5), in the facts and circumstances of the case. He submitted that since reference of the dispute was being made to the Tribunal for adjudication, the workmen had every right to tell the Government that such a reference should not be made and the fact that they would have an opportunity to put forward their case before the Tribunal could not do away with the necessity of hearing at the stage, the Government decided to refer the matter to the Tribunal for adjudication. He also referred to some judgments, which shall be examined in the latter part of this judgment.
8. That the power of review is a creation of a statute admits of no doubt. It also is not subject to any doubt that the Legislature has vested the power with the appropriate Government, either on its own motion or on the application made by an employer or any workman, to review its order granting or refusing to grant permission under Sub-section (2), to close down an undertaking of an industrial establishment or even to refer the matter for adjudication to a Tribunal. Section 25-O(5) of the Act, however, is silent as regards the procedure to be followed while exercising that power- it does not either lay down the circumstances under which the power would be exercised or whether the parties would be put on notice. With a view to examine whether the right of hearing should be read into the provisions of Sub-section (5) of Section 25-O of the Act, it would be relevant to keep in mind the requirements of Section 25-O(2) and the procedure which the Legislature has prescribed for dealing with an application filed by an employer, who intends to close down an undertaking of an industrial establishment. As already noticed, Sub-section (2) of Section 25-O of the Act mandates the appropriate Government to make an enquiry into that application after giving a reasonable opportunity of being heard to the employer as well as the workman with a view to determine the genuineness and adequacy of the reasons stated by the employer before granting or refusing to grant the permission and also to record the reasons therefor in the order itself. Since the life of any order made by the appropriate Government, granting or refusing to grant permission, is one year from the date of such order, vide Sub-section (4), it follows that the section itself contemplates that successive applications can be made. Every time, therefore, an application is made, the procedure prescribed under Sub-section (2) would have necessarily to be followed before an order is made under that Sub-section. The review contemplated by Sub-section (5), which does not limit itself to the correcting of any patent and apparent error or clerical or arithmetical mistake, takes into its fold a fresh determination of the request of the employer or the workman, as the case may be, in the matter of refusal or grant of permission to close down an undertaking of an industrial establishment. Therefore, when the exercise of review is undertaken under Sub-section (5) of an application made by the employer or any workman, it is nothing but a fresh adjudication on merits of the application and the procedure to be followed for dealing with such an application, in our opinion, must conform to the one contained in Sub-section (2) of Section 25-O of the Act. To that extent it is permissible to hold that Sub-section (5) of Section 25-O is only an extension of Section 25-O(2) of the Act and the procedure contemplated thereunder, which is both fair and just, must be followed, otherwise Sub-section (5) may even suffer from the vice of unconstitutionally, as containing neither any guidelines nor procedure for exercising the power of review. It is, however, possible to save the provision of Sub-section (5) from being declared unconstitutional, by harmoniously reading into it, the requirements of Sub-section (2), and treating it as an extension of Sub-section (2). The right of hearing which is contemplated by Sub-section (2) must be read to be inherent in Sub-section (5) also. There is no doubt that the principles of natural justice can be excluded by a statute in a given case, but, such an exclusion has to be considered in the light of the provisions of the statute concerned. Since, as already noticed, Section 25-O(5) of the Act does not contain any guidelines nor does it indicate the factors which should weigh with the authority to review its earlier order, or the extent to which the power of review would extend, the only way to harmoniously construe the provision is to read into the provisions of Section 25-O(5), the requirements contained in Section 25-O(2) of the Act, i.e. the requirements of audi alteram partem and of the necessity to record reasons.
8-A. Even otherwise, one principle which is now well settled and established, by a catena of authorities, is that even if the statute is silent with regard to the grant of hearing to the person affected, then, at least a minimal hearing is necessary, and not only desirable, to avoid the charge of arbitrariness. The observance of the principles of natural justice is the pragmatic requirement of fair play in action. The purpose of following the principles of natural justice is basically the prevention of miscarriage of justice. The rules of natural justice operate as implied mandatory processual requirements, non-observance whereof often invalidates the exercise of power. Of course, the content of application of principles of natural justice is the dependent variable, conditioned by the facts and circumstances of each situation and even where, in the statute, there are no positive words requiring that the party shall be heard, even then, as laid down by the Apex Court in Maneka Gandhi v. Union of India : [1978]2SCR621 , the justice of common law would supply the omission of the Legislature and the principles of natural justice shall be read into the statute, so as to ensure a just decision. The rule of audi alteram pattern is devised to ensure a just decision and is a healthy check on the abuse or misuse of power and the Courts in this country have been very jealous to see that its reach and applicability is not allowed to be unnecessarily circumscribed. There cannot be, indeed, any undue expansion of the principles of natural justice without reference to the administrative realities and other factors, but the fact remains that it is 'untenable hearsay to lock-jaw the victim or act behind his back'' by tempting invocations.
9. An action would cease to be fair if apprising the affected party is found wanting. Even if the statute is silent with regard to grant of hearing to the person affected, but the action taken by the authority involves civil consequences or adverse consequences so far as that person is concerned, at least a minimal hearing is necessary. Where even this minimal hearing at least is not given the action would be vitiated having been taken in violation of the rules of natural justice.
10. Again, the necessity to provide reasons in support of the order is too obvious to be reiterated. The purpose of recording reasons which leads to the passing of an order and conveying the same to the affected party by the authority concerned is basically, intended to serve a two-fold purpose:
(i) that the party aggrieved in the proceeding acquires knowledge of the reasons and in a proceeding before the High Court or the Supreme Court, it has an opportunity to demonstrate that the reasons which persuaded the authority to pass the order adverse to its interest were erroneous, irrational or irrelevant and
(ii) that the obligation to record reasons and convey the same to the party concerned operate as a deterrent against possible arbitrary action by the authority concerned. This position was clearly spelt out by the
Apex Court in Travancore Rayons v. Union of India : 1978(2)ELT378(SC) , thus:
'In this case the communication from the Central Government gave no reasons in support of the order the appellant-Company is merely intimated thereby that the Government of India did not see any reasons to interfere 'with the order in appeal.' The communication does not disclose the 'points' which were considered, and the reasons for rejecting them. This is a totally unsatisfactory method of disposal of a case in exercise of the judicial power vested in the Central Government. Necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved, and the mental process by which the conclusion is reached in cases where a non-judicial authority exercises normally performing executive or administrative functions, this Court would require to be satisfied that the decision has been reached after due consideration of the merits of the dispute, uninfluenced by extraneous considerations of policy or expediency. The Court insists upon disclosure of reasons in support of the order on two grounds: one, that the party aggrieved in a proceeding before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject this case were erroneous, the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power''.
11. Again in Liberty Oil Mills v. Union of India : [1984]3SCR676 , while dealing with Clause 8B of the Imports and Exports (Control) Act, which does not provide for a pre-decisional opportunity to the affected party and also lays down that an order may be made 'without as signing any reason,' their Lordships opined as follows:
'Ours is a constitutional Government, an open democracy founded upon the rule of law and not a cloak and dagger regime, it is inconceivable that under our constitutional scheme a decision of the kind contemplated by Clause 8B which may have the effect of bringing to a standstill the entire business activity of the person affected and which may even spell ruin to him, should be made and implemented without being communicated to that person. Interturiined is the question of observance of natural justice and how can natural justice be satisfied if the decision is not even communicated It would be most arbitrary and quite clearly violative of Articles 14 and 19(1)(g) of the Constitution if Clause 8-B is to be interpreted as including communication of the decision taken. There is nothing in Clause 8B to suggest that the decision is not to be communicated. On the other hand, the expression 'without assigning any reason' implies that the decision has to be communicated, but reasons for the decision have not to be stated. Reasons, of course, must exist for the decision since the decision may only be taken if the authority is satisfied that the grant of licence or allotment of imported goods will not be in the public interest. We must make it clear that 'without assigning reasons' only means that there is no obligation to formulate reasons and nothing more. Formal reasons may lead to complications when the matter is still under investigation. So the authority may not give formal reasons, but the skeletal allegations must be mentioned in order to provide an opportunity to the person affected to make his representation. Chapter and verse need not be quoted. Details may not be mentioned and an outline of the allegations should be sufficient.
12. Thus, it would be seen that recording of reasons and conveying the same also is one of the essential attributes of natural justice. That apart, the obligation to give reasons introduces clarity and excludes, or, at any rate, minimises chances of arbitrariness. It gives satisfaction to the party against whom the order is made and enables an appellate or supervisory Court to keep the Tribunals within their jurisdictional and functional bounds by testing the correctness of those reasons.
13. Keeping in view the aforesaid broad principles, we shall now test the validity of the order which was impugned in the writ petition, in the instant case.
14. That the management had earlier applied to the competent authority for grant of permission under Section 25-O(1) of the Act to close down their unit and the competent authority, after giving opportunity to the management and the workmen and conducting an enquiry, by a reasoned order, dated 9 June 1990, refused the permission to the management to close the unit in exercise of its powers under Section 25-O(2) of the Act is an admitted case of the parties. The 'appeal' filed by the management, which was treated as an application for 'review' under Section 25-O(5) of the Act, therefore, necessarily was aimed at unsettling the order of the competent authority, dated 9 June 1990. The competent authority could not, therefore, straightaway proceed to refer the matter for adjudication to the Industrial Tribunal in the terms in which it did, without at least putting the workmen and the other interested parties on notice and giving reasons in support of its order to refer the matter to the Tribunal. The workmen had every right to be informed since the earlier order of refusal, dated 9 June 1990, had been made by the authority after a proper enquiry in which the workmen had participated. Undoubtedly, reference of the matter for adjudication to the Tribunal was aimed at reopening the issue, earlier settled.
15. We are not impressed by the argument of Sri MR. Narayanaswamy, learned senior counsel, that by making the impugned order under Section 25-O(5) of the Act, the Government did not deprive the writ-petitioners of any of their accrued rights. According to the learned counsel, the order declining permission, which had earlier been made by the Government was still in force and had not been interfered with, much less reversed or reconsidered, and, therefore, the workmen could not be heard to make a grievance of denial of hearing before making the reference for adjudication to the Tribunal. The analogy, which the learned counsel seeks to draw from a reference under Section 10 of the Act in support of this argument, is rather misplaced. Indeed, while making or declining to make a reference under Section 10 of the Act, no notice is required to be issued to the parties by the appropriate Government before passing the order. But, it is well settled that where, after an order has been passed, making or declining to make a reference, in exercise of the powers under Section 10 of the Act, a review of that order would necessarily involve the issuance of notices to the parties concerned before the earlier order is reviewed. Unlike under Section 10 of the Act, it is the mandate of Section 25-O(2) to hear the parties before passing an order and support the order by reasons. It would therefore, follow that review of such an order under Section 25-O(5) cannot be made behind the back of the party which had the benefit of the earlier order passed under Section 25-O(2) of the Act.
16. Learned counsel referred to the judgment in State of Bombay v. K.P. Krishnan : (1960)IILLJ592SC in support of his submission. In the said judgment, while examining the scheme of the relevant provisions of the Act and in particular, the provisions relating to a reference contemplated under Section 10, it was opined that the section confers wide and even absolute discretion on the Government either to refer or refuse to refer an industrial dispute, as therein provided. That judgment, however, is not an authority for the proposition that if once an order has been passed in exercise of the powers under Section 10 of the Act, the authorities can, without putting the parties, on notice, at the instance of one of the parties, reopen the entire issue. That judgment, therefore cannot advance the case of the appeant.
17. In Ramakrishnan Mills Ltd. v. Government of Tamil Nadu 1985 I L.L.N. 483 a Division Bench of this Court, with reference to the power of the Government to make a reference under Section 10 of the Act, opined that by making an order of reference, the Government merely refers the matter to another body for investigation and in the said context, there is no scope for bringing in the principles of natural justice at the time of 'formation of an initial opinion to refer the matter.' This judgment, however, was given in the peculiar facts and circumstances of that case, arising out of a reference under Section 10 of the Act and would have no application to a review contemplated by Section 25-O(5) of the Act when, unlike under Section 10, Section 25-O(2) of the Act itself mandates the holding of an enquiry after notice to the parties before granting or refusing permission at the initial stage when a reference is sought under Section 10 of the Act.
18. On the other hand, in G. Muthukrishnan v. New Horizon Sugar Mills (Private) Ltd., Pondicherry 1980 II L.L.N.70a Full Bench of this Court, while deciding the question as to whether the appropriate Government, for a second time, without reference to the management can act and call upon the Labour Court to adjudicate on a dispute, which on an earlier occasion, the Government had declined to refer for adjudication, answered the question in the negative. The Full Bench opined that in cases where the appropriate Government was moved by one of the parties, the principles of natural justice would be clearly attracted and failure to adhere to such principles would result in a decision which is a nullity because of total absence of jurisdiction. Recognising that the jurisdiction exercised by the appropriate Government while making a reference under Section 10(1)(c) of the Act is only an administrative one in nature, the Full Bench found that while the Government makes a reference, it cannot be said that the act or thing done by the Government is a pure and simple administrative act without having any impact upon the rights of the parties. The Full Bench went on to hold that if the Government having refused to refer an alleged industrial dispute for adjudication, subsequently re-exercises its power and refers the dispute for adjudication solely on the further representations made by the representatives of the workmen, without giving the employer an opportunity to rebut the content and scope of such representations, the subsequent order would be violative of the principles of natural justice and unsustainable.
19. In Theatre Sanjaya v. State of Karnataka : (1984)IILLJ400Kant wherein again the question before the Full Bench of the Karnataka High Court was, whether the principles of audi alteram partem were applicable when the Government having declined to make a reference of an industrial dispute under Section 10(1) of the Act for adjudication, proposes to refer such a dispute for adjudication at a subsequent stage. The majority held that the principles of audi alteram partem were applicable to such a case.
20. A Division Bench of the Punjab and Haryana High Court also, in Escorts Ltd. v. Industrial Tribunal, Haryana, Faridabad 1983 I L.L.N. 688 after considering a number of authorities of the Apex Court, including the judgments in Maneka Gandhis case : [1978]2SCR621 , (vide supra), and Mohinder Singh Gill v. Chief Election Commissioner : [1978]2SCR272 , rejected an argument raised before the Bench to the effect that reviewing and recalling of an earlier order rejecting a reference in favour of the employer would not entail any civil consequences. The Bench opined that though the earlier rejection did not create any vested right in the employer to have the issue finally closed and, therefore, no consideration of res judicata could possibly arise, nevertheless in view of the adverse consequences which may well ensue by reference of the dispute, which had earlier been rejected, the party would be entitled to be heard 'before it is reopened.'
21. The aforesaid judgments, therefore, clearly support the submission of the workmen that before the appropriate Government sought to 'reopen' the issue by making a reference to the Tribunal, it was obliged to put the workmen on notice since in the earlier enquiry under Section 25-O(2) of the Act, the workmen had participated and an order rejecting the prayer of the management to close down the undertaking had been made.
22. It is not necessary to refer to some other judgments which were also cited at the Bar to canvass the importance of the observance of the principles of natural justice because, the principles are too well settled and multiplication of authorities is not necessary.
23. From the aforesaid review of case-Law, it follows that the judicial precedent has tilted heavily in favour of the view that in making a reference under Section 10 of the Act, afresh of an industrial dispute after the same had been rejected earlier, the principles of natural justice would be attracted in favour of the employer. This Court has consistently taken this view which has received the seal of approval by the Full Bench, in G. Muthukrishnan's case, 1980 II L.L.N. 70 (vide supra).
24. The judgments we have referred to above dealt mainly with a reference under Section 10(1) of the Act which at the initial stage is made without participation of the concerned parties, and the necessity to follow the principles of natural justice whenever subsequent review or recalling of the earlier order was involved. The position in matters arising out of proceedings under Section 25O of the Act would stand at a much better footing. Once, after a detailed enquiry, and putting the parties on notice an order has been made under Section 25-O(2) of the Act, the principles of natural justice would require that before the matter is reopened for any purpose whatsoever by the Government, particularly, on the application of one of the parties, the other parties must be put on notice and heard. The rule of audi alteram partem must be observed faithfully in all such cases. The learned Single Judge negatived the submission of the workmen by observing that since before the Tribunal the workmen would have an opportunity to make their say, it was not necessary for the appropriate Government to put the workmen on notice when exercising powers under Section 25-O(5) of the Act. We cannot subscribe to this view in view of what we have said earlier. The workmen have the right to be heard before the State Government decides to reopen the settled issue by referring the matter for adjudication to the Tribunal. The hearing during the adjudicatory proceedings does not obliterate the necessity of hearing them before making the reference. Since, as already noticed, the life of the earlier order made under Section 25-O(2) of the Act was one year, as contemplated by Sub-section (4) of Section 25-O, any consideration of the matter afresh, during the life time of the earlier order, necessarily requires the procedure envisaged by Sub-section (2) of Section 25-O to be followed strictly. It is no solace to the workmen that they would have their say before the Tribunal. They had every right to represent before the appropriate Government their case to meet the contentions put forward in the 'review' application filed by the management, requiring reconsideration of the earlier order passed under Section 25-O(2) of the Act and to canvass to the contrary. There is, of late, a definite shift to a broader notion of fairness or fair procedure in administrative action. The following passage (in para 23, at page 799) from the judgment of the Apex Court in Neelima Misra v. Harinder Kaur Paintal 1990 I L.L.N. 792 would be relevant:
'The shift now is to a broader notion of 'fairness' or 'fair procedure' in the administrative action. The administrative officers are concerned, the duty is not so much to act judicially as to act fairly (see: Keshav Mills Company Ltd. v. Union of India : [1973]3SCR22 ; Mohinder Singh Gill v. Chief Election Commissioner 1918 (1) S.C.C. 405; Swadeshi Cotton Mills v. Union of India : [1981]2SCR533 and M.S. Nally Bharat Engineering Company Ltd. v. State of Bihar and Ors. 1990 I CLR 736. For this concept of fairness, adjudicative settings are not necessary, nor is it necessary to have lis inter parties. There need not be any struggle between two opposing parties giving rise to lis. There need not be resolution of lis inter parties. The duty to act judicially or to act fairly may arise in widely different circumstances. It may arise expressly or impliedly depending upon the context and considerations. All these types of non-adjudicative administrative decision-makings are now covered under the general rubric of fairness in the administration. But when even such an administrative decision unless it affects one's personal rights or one's property rights, or the loss of or prejudicially affects something which would judicially be called at least a privilege does not involve the duty to act fairly consistent with the rules of natural justice. We cannot discover any principle contrary to this concept.''
25. In this instant case, the workmen had the benefit of an earlier order, dated 9 June 1990, in their favour. They could not be referred to the Tribunal to suffer an adjudication, without first being put on notice by the appropriate Government, with regard to its intention to 'reopen' the whole issue. When the Government chose to look into its earlier order at the instance of the management, in all fairness, it should have heard the workmen who were participants in the earlier enquiry resulting in an order, which was adverse to the interest of the management. The Tribunal does not have any power to set aside the earlier order, dated 9 June 1990, as the correctness of that order is not the subject-matter of reference. The order of reference was made on the review application and for all intent and purposes, a fresh consideration of the matter would be called for. Of course, the finality of the order passed under Section 25-O(2) read with Section 25-O(4) is subject to the exercise of power under Section 25-O(5) of the Act, but that does not in any way improve the matter so far as the appellant is concerned, nor does it do away with the necessity of putting the workmen on notice before making the order of reference.
26. That apart, we find that no reasons have been given in the impugned order for making a reference. The absence of reasons has deprived this Court to know the circumstances which weighed with the appropriate Government to refer the matter to the Tribunal after having passed a reasoned order under Section 25-O(2) of the Act earlier on 9 June 1990. The absence of reasons also, therefore, invalidates the impugned order. There is yet another factor which we must take note of. We find from the typed set of papers that at the time when the management first approached the competent authority for permission to close down the unit, it had given certain reasons in support of its request seeking permission to close down the unit. The workmen had countered those reasons and the authority declined the permission to the management. In the subsequent 'review' application, many matters which were not projected in the earlier application, have been introduced. That by itself is sufficient to warrant the workmen being put on notice to meet those additional and new reasons before the application was taken up for consideration and before passing any order within the scope of Section 25-O(5) of the Act. The impugned order makes a larger reference and is much wider in terms than the one which was earlier contemplated. The so-called 'review' application, therefore, necessarily required the entire procedure prescribed by Section 25-O(2) of the Act to be followed scrupulously.
27. In our considered opinion, therefore, the procedure envisaged by Sub-section (2) of Section 25O must necessarily be followed while dealing with an application for review made at the instance of any party in the exercise of power under Section 25-O(5) of the Act and passing any order under Sub-section (5) of Section 25O of the Act. Thus, considered in the admitted facts and circumstances of this case, when that procedure was not followed and the principles of natural justice were given a go-by and an order of reference was made by the Government, without even recording any reasons, behind the back of the workmen, the order impugned in the writ petition cannot be sustained. The learned single Judge, in our opinion, fell in error in dismissing the writ petition of the workmen and that judgment cannot be sustained. We accordingly accept this appeal and set aside the order of the learned Single Judge. Consequently, Writ Petition No. 15835 of 1990 would stand allowed and the order of reference quashed. There shall be no order as to costs.
28. It is, however, clarified that it would be open to the appropriate Government, if so advised, to pass fresh orders on the 'review' application of the management, already filed or any other application which the management/workmen choose to file, in the light of the observations made hereinabove, on merits and in accordance with law.