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Judgment
E. Padmanabhan, J.—The Management of Tamil Nadu Magnesite Ltd., Salem, is the writ- petitioner in both the writ petitions.
In Writ Petition No. 12998 of 1997, the petitioner has prayed for the issue of a writ of certiorari to call for the records connected with the
proceedings of the first respondent in order No. L.29024/21-97-IR(Misc), dated July 11, 1.997, and quash the same.
In Writ Petition No. 12999 of 1997 the petitioner has prayed for the issue of a writ of certiorari to call for the order of the first respondent in
No. L.29024//21-97-IR(Misc), dated April 15, 1997, and quash the same.
With the consent of counsel on either side, the writ petitions are taken up for final disposal.
Heard Sri Sanjay Mohan, learned counsel appearing for the writ petitioner and Sri N.G.R. Prasad, learned counsel appearing for the
respondents 2 to 10 and none appearing for the first respondent-Union of India.
The writ petitioner-company is a Government of Tamil Nadu undertaking engaged in mining magnesite from quarries situated in Salem. The
petitioner-company was not granted lease to operate the quarry, which quarries were under the active operation for over forty years and till 1978.
The petitioner applied for renewal of mining which was rejected by the State Government. The mining application was submitted on August 25,
1981 with the District Collector and the same was disposed of by the Government u/s 24(3) under Mineral Concession Rules, 1960. The second
mining lease application, dated October 5/11, 1983, was also deemed to be rejected by the State Government u/s 24(3). The petitioner submitted
a revision before the Government of India, Department of Mines, and the same was rejected since it is belated by letter, dated July 3, 1985. The
petitioner submitted a third application on July 15, 1985 which was returned by the State on August 19, 1986 with instructions to comply with the
Forest (Conservation) Act, 1980, a new enactment passed by the Parliament to regulate the use and prevent misuse of forest covered especially
under the Reserve Forest. Once again on August 20, 1986 proposals were submitted to the Forest Department seeking clearance. In the present
case mining operations were being carried on for over 40 years prior to the commencement of the Act. It is not in dispute. The Forest Department
by its reply, dated December 3, 1986, called upon the petitioner to identify and transfer equivalent non-forest land as pre-condition for forwarding
the application to the State Government. The petitioner took steps to identify non-forest lands for transfer. Several lands were identified. But the
Forest Department rejected the same for one reason or other. Ultimately on April 30, 1998, the Forest Department accepted the alternate land
and a consent letter was issued by the District Forest Officer, Salem, on July 22, 1991. Proposals have already been submitted to the Forest
Department on January 30, 1991. But the same was not forwarded by the Forest Department to the Government on the view that double the area
of the land used for mining had to be identified and handed over to the Forest Department physically. As the long term lease, proposal, dated May
6, 1989, came to be returned with the advice to submit fresh proposal for alienation of land which was submitted on January 11, 1990 and the
same was forwarded by the Collector on February 17, 1989 to the Government. The cost of the land was fixed at Rs. 15,000 per acre and it was
subsequently refixed at Rs. 17,800 and Rs. 31,500 per acre by the Collector on May 17, 1992. The petitioner approached the Government for
mutual transfer. The Government in turn required the District Collector who sent a final report to the Commissioner of Land Administration. The
Commissioner of Land Administration after receipt of the report forwarded the same to the Government and by G.O. No. 210, Revenue
Department, dated February 20, 1997, final orders were passed by the Government transferring the non-forest land in favour of the Forest
Department for raising compensatory afforestation (sic).
When the above proceedings were pending, a public interest litigation was filed before the Supreme Court in WP. (Civil) Nos. 202 of 1995 and
171 of 1996. The Supreme Court by order, dated December 12, 1996, directed that all on going activities within any forest area in any State
throughout the country for which no prior approval of the Central Government has been secured should cease forthwith. In terms of the said orders
of Supreme Court the District Forest Officer by letter, dated January 30, 1997, directed the petitioner to stop the operations at once. This
necessitated the petitioner taking up the matter with the Government and the State Government advised that the orders of the Supreme Court had
to be complied with and there is no possibility to continue the mining operations. The petitioner has to stop the mining operations at once and on
February 19, 1997 a decision was taken after meeting all the trade unions to declare lay-off from February 19, 1997. This necessitated as the
petitioner was not in a position to offer any alternate employment to 1300 workmen. The workers also extended their co-operation by letter, dated
February 18, 1997, and the District Forest Officer was also informed of the same. Having declared lay off the petitioner sought for exemption of
the applicability of Chap. V-B. of the Industrial Disputes Act to the petitioner so far as the lay-off was concerned under Sub-section (9) of Section
25-M of the Industrial Disputes Act on the ground that it is totally beyond the control of the employer and in view of the orders passed by the
Apex Court, which has to be obeyed immediately. On the application: submitted with the Ministry of Environment, permission was granted for a
temporary period of six months wherein earlier operations were carried on. On March 28, 1997 lay-off was lifted and the workers also reported
for duty.
The Government of India, Ministry of Labour, by letter, dated April 5, 1997, rejected the petitioner''s request for exemption from the
applicability of Section 25-M as the petitioner was carrying and without prior permission of the Government of India before application. Further
the petitioner was directed to submit a fresh application seeking permission of the Government of India for the lay-off already declared. On that the
petitioner submitted a fresh application for permission for the lay-off already declared for the period February 19, 1997 to March 27, 1997 by its
application, dated May 9, 1997, in which the entire facts were set out. However on July 11, 1997 the request of the petitioner for lay-off though it
has been held to be genuine and reasonable, but the Joint Secretary, Ministry of Labour, taking into consideration of the interest of the workmen
declined to grant permission for the said lay-off. Aggrieved by the said two proceedings, the above two writ petitions have been filed.
It is contended by the counsel for the petitioner that while passing the impugned order the respondents have taken into consideration of materials
which are irrelevant and this has vitiated the proceedings. Even assuming that there was earlier operation of the mines without valid lease or license,
it has no relevancy and it has no germane to Sub-section (1) of Section 25-M of the Industrial Disputes Act. It is contended that the reasons
assigned not being relevant and there being total non-application of mind the impugned proceedings are illegal and therefore the same are liable to
be quashed. That apart, valid license has been acquired and therefore in the light of that the respondent should be directed to reconsider the whole
issue.
Per contra, it is contended by the respondents that in the light of the Supreme Court judgment in T.N. Godavarman Thirumulkpad Vs. Union
of India and others, , the workmen, shall not be retrenched and therefore the contention advanced by the counsel for the petitioner cannot be
sustained.
Section 25-M provides that the workmen shall not be laid-off by the employer except with the permission of the appropriate Government.
Unless such lay-off is due to shortage of power onto natural calamity and in the case of a mine, such lay-off is due also to fire, flood, excess of
inflammable gas or explosion. Sub- Section (5) of Section 25-M provides that if an application or permission under Sub-section (1) or Sub-
section (3) has been made and if no order is passed granting or refusing to grant permission 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. The
Sub-section provides for review of the order by the appropriate Government. Sub-section (9) which is being heavily relied upon provides that
notwithstanding anything contained in the earlier sub-sections of Section 25-M, the appropriate Government may if it is satisfied that owing to such
exceptional circumstances as accident or death or like it is necessary so to do, by order direct that the provision of Sub-section (1) or as the case
may be Sub-section (3) shall not apply in relation to such establishment for such period as may be specified in the order.
Concedingly, the application for grant of lease was pending for quite some time and as per existing provisions mining operations were
proceeding. But in the light of the directions issued by the Supreme Court on December 12, 1996 in T.N. Godavarman Thirumulkpad v. Union of
India [W.P. (Civil) No. 171 of 1996], the District Forest Officer directed the petitioner to stop quarry operation at once. At that stage, the
petitioner applied to the Government of India for permission to lay-off and in terms of Sub-section (1) of Section 25 of the Industrial Disputes Act,
but in the exceptional circumstances, namely, the direction issued by the Supreme Court and the consequential orders of the District Forest Officer.
The first respondent by communication, dated April 15, 1997, directed the petitioner to submit a fresh application seeking permission of the
Government for the period of lay-off already declared as even prior to the order of the Supreme Court the mining was carried without prior
consent of the Government of India. The petitioner once again submitted a fresh application setting out various details u/s 25-M of the Industrial
Disputes Act on May 9, 1997.
The learned counsel for the petitioner Sri Sanjay Mohan, rightly contended that the order impugned, dated July 11, 1997, is a bundle of
contradictions and it has been passed without application of mind. The respondent having held that the request is reasonable and genuine, yet the
respondent has declined to grant permission for the lay-off declared by the management from February 19, to March 27, 1997. It is further
pointed out that the first respondent accepted that the circumstance is exceptional one warranting or justifying lay-off declared already. There is no
escape except to lay-off. The respondent also proceeded on the premise that there is no valid lease or license or consent of the Government of
India. It is pointed out by the learned counsel for the petitioner that by G.O. Ms. No. 234, Environment and Forest Department, dated August 6,
1998, the State Government has granted lease of 177.96 hectares to the petitioner for a further period of ten years.
The learned counsel for the petitioner also drew the attention of the Court to the approval granted by the Government of India, Ministry of
Environment and Forest, for mining of Magnesite for a period often years. When earlier the Government also granted temporary working
permission for different spells in exercise of the powers conferred by Forest Conservation Act, 1980, and renewal of the lease in favour of the
petitioner and the mining operation being permitted to be continued, it is contended the respondent should take into consideration of the same or
should be directed to reconsider the whole matter.
In the present case lay-off has to be effected without a moment''s delay in view of the directions issued by the Supreme Court whose orders
have to be respected and therefore the petitioner could not have applied in advance, nor could have sought for previous permission of the
appropriate Government. Prior permission is to prevent avoidable hardship to the employees and to maintain tempo of production for preserving
industrial peace and harmony. But, in this case it is beyond the control of the petitioner as it has to stop operating the mines in view of the directions
issued by the Supreme Court and in fact to such proceedings the petitioner was not a party but is in respect of conservation of forest and
protection of environment which led to the passing of the order. Therefore there is no other alternative for the petitioner except to lay-off and
thereafter apply to the appropriate Government.
Though the learned counsel for the respondent-workmen contended that the employer cannot stop the payment, as has been ordered by the
Supreme Court, this Court will not be justified in sustaining the same on the facts of the case.
Exercise of power by the first respondent u/s 25-M being quasi-judicial in nature and not purely administrative or discretionary and such a
power has to be exercised in accordance with the object indicated in the Statement of Objects and Reasons provided for in Section 25-M. The
remedy of judicial review is very much available to the petitioner and this Court could examine whether the rejection is in consonance with the
object and purpose of the Act. This Court could very well examine whether the exercise of power by the first respondent is arbitrary or germane
material on the record excluding extraneous and irrelevant has been taken into consideration. The High Court in exercise of jurisdiction under
Article 226 of the Constitution could very well examine as to the validity of the order passed by the first respondent in exercise of judicial review.
Such exercise of judicial review, on the facts of the case is warranted and a case has been made out for interference. Hence the impugned order is
liable to be quashed.
The order impugned in W.P. No. 12998 of 1997, dated July 1, 1997, deserves to be quashed as the first respondent had assigned reasons
which are not relevant and having held that there is reasonableness and genuineness in the request made by the writ-petitioner-management, yet, it
has declined to grant permission for lay-off. As rightly contended by the counsel for the petitioner, the first respondent has acted arbitrarily and had
taken into consideration matters which are not relevant or irrelevant consideration has entered in the minds of the first respondent. The
extraordinary circumstances has prevailed consequent to the orders of the Supreme Court. The first respondent also proceeded as if there was no
direction by the Supreme Court to lay-off. But, in this case direction has been issued, there was no such occasion, nor the petitioner was a party,
nor the Supreme Court had considered the case of the workers are to be laid off. The petitioner-company was also initially granted necessary
permission and it has continued mining operation and the application for renewal granted with retrospective effect. In the foregoing circumstances,
the order impugned in W.P. No. 12998 of 1997 is quashed and the matter is remitted back to the first respondent to pass fresh orders after
affording opportunity and pass orders according to law taking into consideration of relevant facts and materials and in terms of the Industrial
Disputes Act.
Writ Petition No. 12999 of 1997 has to be dismissed as nothing survives in the writ petition as subsequent order has been passed by the first
respondent and the same has been quashed in W.P. No. 12998 of 1997.
In the result, W.P. No. 12999 of 1997 is dismissed and W.P. No. 12998 of 1997 is allowed and the matter is remitted back to the first
respondent for fresh consideration in the light of the discussions and the first respondent shall consider and pass orders after affording opportunity
to either side. Consequently, connected WMPs are closed. The parties shall bear their respective costs.