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IN THE HIGH COURT OF BOMBAY
A.V. Savant, J.
HINDUSTAN LEVER EMPLOYEES UNION - Appellant
Vs.
STATE OF MAHARASHTRA AND OTHERS - Respondent
Writ Petition No. 3364 of 1988
Decided on : 15-09-1993
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 2(CC), 25-O - CLOSURE - SHIFTING OF DEPARTMENT - BONA FIDE - PERMISSION FROM STATE GOVERNMENT - INDUSTRIAL ADJUDICATION - JURISDICTION OF HIGH COURT UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA.
Fact of the Case:
The petitioner, a trade union, filed a petition under Article 226 of the Constitution of India seeking a writ of certiorari to prohibit the State Government from granting permission to the respondent company to close down any part of its factory or, in the alternative, to quash and set aside any such permission already granted. The dispute related to the shifting of the Nickel Catalyst Department of the respondent company's factory from Sewree, Bombay to Taloja, Raigad District.
Finding of the Court:
The Court held that the shifting of the Nickel Catalyst Department was bona fide and genuine and did not amount to closure within the meaning of Section 2(cc) or Section 25-O of the Industrial Disputes Act, 1947. The Court further held that the petition was misconceived and that the petitioner ought to have approached the Industrial Court for relief.
Issues: 1. Whether the shifting of the Nickel Catalyst Department amounted to closure within the meaning of Section 2(cc) or Section 25-O of the Industrial Disputes Act, 1947? 2. Whether the petition was maintainable under Article 226 of the Constitution of India?
Ratio Decidendi: 1. The Court held that the shifting of the Nickel Catalyst Department was bona fide and genuine and did not amount to closure within the meaning of Section 2(cc) or Section 25-O of the Industrial Disputes Act, 1947, because: a) There was no mala fides on the part of the respondent company in shifting the department. b) The shifting was in accordance with the State Government's policy of shifting hazardous industries out of Bombay. c) All the workmen in the Nickel Catalyst Department were immediately absorbed in other departments at Sewree as a result of the shifting. d) Under the Standing Orders of the respondent company, the transfer from one department to another was permissible. 2. The Court held that the petition was misconceived and that the petitioner ought to have approached the Industrial Court for relief, because: a) The allegations of the petitioner necessitated an enquiry into facts for recording a finding that shifting in this case was not bona fide and genuine but was mala fide and colourable. b) Evidence was required to be led by both the sides, which would not be normally possible in the limited jurisdiction under Article 226 of the Constitution of India.
Final Decision: The Court discharged the rule in the petition and held that the petition was not entitled to any relief.
JUDGMENT :
A.V. Savant, J.
Heard all the learned Counsel at length, namely, Shri Gonsalves for petitioner-Union:
Shri Master for respondent No. 1-State and Shri Andhyarujina for respondent No. 2 - Employer. This is a rather unusual petition seeking relief in terms of prayer (a) which says that this Court should issue a writ of certiorari permanently prohibiting respondent No. 1 from granting permission to respondent No. 2 to close any part of the department of their Sewree Factory or, in the alternative, if such a permission is already granted, to quash and set aside the order granting the same.
2. The petitioner is the Hindustan Lever Employees' Union which is a registered trade union; the first respondent is the State of Maharashtra represented by the Department of Industries; and the second respondent is the employer viz., Hindustan Lever Limited. The dispute relates to the shifting of the Nickel Catalyst Department of the second respondent's factory from Sewree, Bombay to Taloja which is in Raigad District. It appears that having regard to the increasing menace of pollution, the State Government appointed a Committee known as the Garg Committe. Garg Committee made its recommendations and the question of shifting of extremely hazardous type of industrial units out of Bombay was considered by the State Government. Certain industries were identified as being extremely hazardous type of industries requiring shifting. The Committee made its report. The State Government also formulated its policy regarding the industrial location in Bombay Metropolitan Region in respect of which Bombay Metropolitan Regional Plan No. 1970/91 came into effect from August 16, 1973. The plan provides for review of the industrial location policy in the region. The Government Resolution dated February 3, 1984 spells out the modified policy for the purpose of Industrial Location in the Bombay Metropolitan Region which was divided into four zones. Zone-1 consists of Bombay Island. Zone-II consists of suburbs and the extended suburbs of Greater Bombay, Thane Municipal Corporation, Mira and Bhayandar and some other areas. Zone III consists of New Bombay area and Zone IV consists of remaining area of Bombay Metropolitan Region. Admittedly, Sewree fell in Zone-1 Bombay Island. Taloja falls in Zone HI consisting of New Bombay area. Certain guidelines have been issued in the said policy resolution dated February 3, 1984 regarding the location of the large, medium or small scale industries. The second respondent undoubtedly is a large scale industry.
3. In the light of the said policy resolution dated February 3, 1984 and recommendations of the Garg Committee, a meeting was held on October 18, 1985 in the Chamber of the Additional Chief Secretary (Industries), Government of Maharashtra where the Industrialists concerned participated to discuss the question of shifting their hazardous activities outside Bombay. Minutes of the said meeting held on October 18, 1985 are at Ex.A to the petition. The Industries identified as hazardous industries are as under:
ii) Ahmed Oil Mills
iii) Bombay Soap Factory.
iv) Excell Industry,
v) Hindustan Lever (respondent No. 2.)
vi) Indian Explosives, and
vii) Polychem.
On November 20, 1985, the second respondent-Company applied to the State Government for permission to shift to Taloja in keeping with the policy dated February 3, 1984 and the minutes of the meeting held on October 18, 1985 and asked for necessary assistance. On June 22, 1988 there was agitation in the factory resulting in the lock-out. On August 18, 1988 the State Government permitted the second respondent to shift the Nickel Catalyst Unit to Taloja. The petition has been filed on November 3, 1988 praying for the reliefs mentioned above.
4. At the admission stage, Mr. Sudhir Goyal, Factory Personnel Manager of the second respondent filed an affidavit dated November 4, 1988. The affidavit categorically stated that the second respondent did not wish to effect a
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