Ferro Alloys Corporation Ltd. Vs. Labour Commissioner and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - for various chronic sickness followed by host of economic and other unavoidable factors, it has made reference to the bifr in november, 1998 under section 15 of the sick industrial companies (special provisions) act, 1985. on account of depressed conditions prevalent in the overseas and also in the domestic market coupled with high power tariff, over capacity and low import duties, the industry was badly affected. it is evident that the legislature has taken care in exempting the need for prior permission for lay off in section 25-m if such lay off is necessitated on account of power failure or natural calamities because such reasons being grave, sudden and explicit, no further scrutiny is called for.r.k. patra, j.1. in this writ petition, the management seeks quashing of the order dated november 16, 2001 (annexure-2) of the labour commissioner, orissa, rejecting its application in which it sought permission to lay off 384 workmen in its establishment with effect from november 5, 2001.2. we have heard shri d.p. nanda for the management-petitioner, shri patnaik, learned additional standing counsel, for the labour commissioner and shri sashikanta mishra for the intervenor- workmen.3. the case of the petitioner is that it is a registered company and has set up a charge chrome plant at randia, bhadrak, which is a power intensive industry and is 100% export oriented. for various chronic sickness followed by host of economic and other unavoidable factors, it has made reference to the bifr in november, 1998 under section 15 of the sick industrial companies (special provisions) act, 1985. on account of depressed conditions prevalent in the overseas and also in the domestic market coupled with high power tariff, over capacity and low import duties, the industry was badly affected. to add to its miseries, the north eastern electric supply company limited (nesco) suddenly increased the electricity tariff resulting in non-viability of the industry. as the petitioner was unable to pay the electricity charges to nesco, it has disconnected power supply to the plant since march, 2001. the.captive power source has also become disabled by over pressure for which reason the petitioner had to stop production activities since november 5, 2001. as such, it has laid off with effect from november 5, 2001 workmen numbering 384 out of the total 438 workmen employed in its establishment due to shortage of power. the petitioner simultaneously applied for permission to the labour commissioner, orissa under sub-sections (1) and (3) of section 25-m of the industrial disputes act, 1947 for continuing lay off of the aforesaid 384 workmen. the application is dated november 5, 2001 at annexure-1 which was received by the labour commissioner on november 8, 2001. the labour commissioner, however, without giving an opportunity of being heard to the petitioner illegally rejected the application by the impugned order.4. there is no dispute at the bar that previous permission of the specified authority to lay off a workman whose name is borne in the muster rolls of the industrial establishment is not nepessary if such lay off is due to shortage of power or natural calamity. in this connection we may profitably refer to the judgment of the supreme court in papanasam labour union v. madura coats ltd., air 1995 sc 2200 : 1995 (1) scc 501 : 1997-iii-llj (suppl)-938. in paragraph-19 of the judgment, the court observed as follows at pp. 947 & 948 of llj:'.....it is evident that the legislature has taken care in exempting the need for prior permission for lay off in section 25-m if such lay off is necessitated on account of power failure or natural calamities because such reasons being grave, sudden and explicit, no further scrutiny is called for. there may be various other contingencies justifying immediate action of lay off but then the legislature in its wisdom has thought it desirable in the greater public interest that decision to lay off should not be taken by the employer on its own assessment with immediate effect but the employer must seek approval from the concerned authority which is reasonably expected to be alive to the problems associated with the concerned industry and other relevant factors, so that on scrutiny of the reasons pleaded for permitting lay off, such authority may arrive at a just and proper decision in the matter of according or refusing permission to lay off .....' it may be noted here that in the case at hand, lay off is made on the ground of shortage of power.5. by referring to sub-section (4) of section 25-m, shri nanda contended that the impugned order of the labour commissioner is vulnerable because without giving it an opportunity of being heard, he could not have rejected the petitioner's application. we find sufficient force in the above contention, sub-section (4) of section 25-m provides that when an application for permission to lay off is made, the specified authority after giving a reasonable opportunity of being heard to the employer, workmen concerned and the persons interested in such lay-off, may grant or refuse to grant such permission. admittedly, neither the petitioner nor the workmen concerned nor persons interested in lay off was/were heard. there is thus clear violation of the principle of natural justice envisaged in the aforesaid provision.6. for the reason aforesaid, the impugned order cannot be supported in law which is hereby quashed. the matter is remitted to the labour commissioner for reconsideration according to law. counsel for the petitioner and the workmen agree that their representatives would appear before the labour commissioner on may 20, 2002 to receive further direction from him.7. counsel for the intervenor-workmen submitted that the workmen have not been paid their lay off compensation which fact is disputed by shri nanda. without expressing any opinion on this claim, we give liberty to the workmen to apply to the labour commissioner for necessary relief.8. the writ petition is accordingly allowed.pradip mohanty, j.i agree.