KALINGA TUBES LTD. versus THEIR WORKMEN

KALINGA TUBES LTD.

THEIR WORKMEN

May 3, 1968

[J. M. SHELAT, K. S. HEGDE AND A. N. GROVER, JJ.J

iildustri'al Dispute-Closing down of undertaklng-Whether closure or lockout-Tests for .

Industrial Disputes Act (14 of 1947), s. 25FFF(l) and proviso-'Unavoidable circun1stances beyond the control of the e1nployer'-Scope of.

The appellant was prosperous public company whose principal un-dertaking was the manufacture and sale of iron pipes and poles. In August, 1965 its workmen demanded honus at rate higher than what they were receiving and the Assistant "Labour Commissioner started cor-respondence with the. management and the secretary of the workers' union. On 1st October, 1967, about 150 workmen assembled, after 2 p.m., at the gates of th·e administr;;i.tive buildjng in which about 40 members of the staff \Vere present. The members of the staff were not allowed to leave th~ building an<l no ingress or egress was allo\ved even of refresh-ments. At 5 a.m. nex,t day, the police arrived and wa'rned the workmen lh>t force will be used unless they left, and rescued the staff. The secretary of the workers' union was present during all that time hut never made any ·~!fort to persuade the assembled workmen to leave the premises. The factory remained closed on 2nd Octobe'r on account of public holiday and on the 3rd October, 1967. the management issued notice declaring closure of the factory, and sent copy of it to t.he Chief lnspectc:tr of Factories. notice v.,ras given tn the \Yorkers that they should hand over vacant possession of the quarters which had been allotted to them. k~tter was written to the Chief l'vfinister of the State that the mana~ ment had no other alternative but to close down the factory. Information \\'as similarly given to the Superintendent of Police in which request \Vas n1adc for posting platoon of police force in the factorv premises at the appellant's cost. Employees in the branch offices in other States were dis-F charged and members of the staff at the principal offi.oe were notified th~t their services would be te'rminatcd within period of three months from the date of closur-<. 3rd Octohcr, 1967. The management offered to pay the \YOrkmen wages for one month in 1ieu of notice. and compensation under the proviso to s. 25FFF(l) of the Industrial Disputes Act, 1947, on the ground that the closure was on account of unavoidabl-c circum-stances beyond the control of the employer.

On the question whether the appellant bad declared lockout or \Vhethcr it was bona fide closure, the Industrial Tribunal. to which ~he question \Vas referred by the State Government. held that the ·suspending of the work in the factory amounted to lockout, that it was illegal and gave consequential directions.

In appeal to this Court.

HELD : ( !) The notice of 3rd October. I 967 amounted to closure of the busine·ss itself and not lockout. Ordinarily, this Cou'rt does not interfere with the findings of fact of the Industrial Tribunal, but the ques-tion \\'hcthcr the undertaking was closed down or not by means of the-

notice \\'<is not C\1nsidered in proper manner hr the l'ribunal and its approach \\'as erroneous an<l suffered fron1 infirmilic,'i. [300 D-E]

(a) The Tribunal erred in holding that there can be closure of an undertaking only when there are financial difficultiC< and the undenakiog hccomes losing concern. There is no such principle of industrial laW. C)n the other hand, the entire set of circumstances and fact~ have to be taken into ;iccount \\ hile endeavouring to find out if. in fact, there h~r· been closure. Jn O;lC Ca!>'t:, the management may decide to close d()\.\.'tl ;1n undcrlaking because df financial or purely huc;incss rca-;ons; in another. 1l m~tv decide 1n f;1\·our of closure v•hen faced v:ith :1 situ:ition in which it ic; considered either dangerous or hazardous from . the point of view of the safety of the administra~ive staff or of ~he members of the management or even of the employees them.selves in canying on the husiness. The csc;cnce of the n1atter is the faclum of closure by y.·hatcver reasons moti-1·atcd, and not mere pretence of closure. [295 D-E; 297 G-H)

In the prcsi.:nt case, if the \\.'Orkcrs' demand was purely in respect of honu<; there \VJS no justific.:i.tion for kccpin~ about 40 members of the ;1dministrative staff confined inside the huilding for about 15 hours and n1;1kin~ thcn1 pa<.,s through an anXious time. On account of the 1:1ierao. 1he n1agnitudc: of ,\·hich was not inconsequential. th·.! n1anagcment was L'nlitlcd to close do,,·n the undertaking. The fact that the decision to close down v:-as quick decision and the appellant ·was profitahl·:! and going concern could nor gi,·e rise to any suc;picion regarding the action when considered in the hackground and circumstances of the case. f298 A-B. ~ffi .

Tea Di.'ifricts Lnf,011r ·Association, Calcutta v. Ex-En1ployees of Tec. J>istrict Lnho11r A.\·sociation, [1960] 3 S.C.R. 207: Express Ne1•.:svaf'<'rS I.rd. v. Their Workers llnd Sraff, [1962) 2 L.l..J. 227. Workers of Pudukol· rah Texrile Mill v. The Mana11emr111. C.A. :So. 1005 of 1963. Andhrr. l'rnhlta Lrd. v. Thr Secretary, A1adra.'i Union of Jo11r11alists, [1967) 3 S.C.R. 901 and Indian llunte Pipe Co. l~td. v. '!heir Worknten, fl96R] 3 S.C.R. 130 followed.

(h) There is no c-.idence 1hat the act.ion taken. was not ratific-d or not accepted hy the Board of Directors or other offic-~r competent to ac:cord appro\·al. On the contrary. large nun1bcr of cn1p]oyces both at foe principal office and the branch officx.-. in other States had been dis-charged from scrv~c(' or.notices of termination had been served on them. compensation Y.'a':i offered to the v.·orkmen and accepted by many under the proviso to s. 25FFF(l) of the Act on the basis of closure. and, after elosin" the factorv no orders v.·ere obtained or executed in the matter of ,aJes."" Therefore: no adverse in.farcncc a~ainst the appellant could he c'.rawn hecau~ of the non-production of resolution passed by it.s Board ('If Directors or of other formal decision taken hv the management. c"pc-cially \\'ht'll. the ·r-:spondent-workmen had not asked for such production. [299 E-H! ·

(c) The· .siotement in the notice that 'the factory would he clooed' could not he conC!Usi"c on the question whether the appellant merely closed JO\J..'n the pl;ice of business. or dosed down the husinc~c; itself a<; " final and irrevocable clo!f.lre. The concluc;ion should he reached on the totality of the fact< and circum<tances of the case. [300 B·Dl f'xpr"s Nc1npnpcn Lrd. casr, [1962) 2 L.L.l. 227. referred to.

(d) The rcsponllentc;' contention that the company must he \\·ound up or that there should have been transfer .of the machinery or the factor\• heforc i1 could be said that the uadenak1nf? had hcen closed do1,1,•n \v~1\ nOt correct. [299 JI]·

Workers of the Pudukottch Textiie M;l/s case, C.A., 1005 of 1963, followed. ·

(2) The closure of the undertaking was, however, not due to un-avoidable. circumstances beyond the control of the appellant. Therefore, the appellant was liable to pay compensation not under the proviso to s. 25FFF (1) but under the _sub-section itself. [303 FJ

The intention of the Legislature is to be very stringent and strict about the nature of the circumstances which would bring them within the pro-viso; and the burden of proof is on the employer to show that the case comes within the proviso..i that is, that it was not poSsible to carry on the business in business-like way or without unusual exertion. It is not expected that, when difficulties arise, the employer should sit idly and not make an effort like prudent business man to tide over the difficulties and save his business. [303 D-E]

In the present case, there was the gherao and the apprehension as lo personal safety expressed by the members of th,e staff in their letters tv the management. But in those letters it was stated that the staff would not be able to attend office unless arrangements were made for their pro-tection and safety. There was nothing to indicate that the police had refused to give protection even to the individual members of the staff or that the expenditure o'r -:;ost of securing such protection for them would have been so exorbitant that the appellant could not have afforded it. [302 D-F] . · ,,

Mis. Bhattachar;va Rubber Works (P) Ltd. v. Bhattacharya Rubber Works Workers' Union, A.I.R. 1960 Cal. 356, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 26 of 1968.

Appeal by special leave from the Award dated December 5,

1967 of the Special Industrial Tribunal, Orissa, Bhubaneshwar in Industrial Dispute Case No. 1 of 1967.

Sachin Choudhury, M. K. Banerjee, B. Parthasarathi, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the appellant.

Gobind Das and R. Gopalkrishnan, for the respondents .

The Judgment of the Court was delivered by

Grover, J. This is an appeal by special leave against the award of the Special Industrial Tribunal, Orissa in which · the principal question which has to be determined is whether there was closure of its undertaking by the appellant-Company pur-suant to notice issued on October 3, 1967 to its workmen on account of the Gherao, if it is permissible to use that expression, of the staff and officers of the Company in its Administrative Office building from about 2 p.m. of October l, 1967 till 5 a.m. of the morning of October 2, 1967, and if it was not closure whether there was refusal by the management of the Company to employ its workmen amounting to lock out.

The material facts may be succinctly stated. The appellant is public company having its registered office at Choudwar in

the district of Cuttack. It maintains some branch offices at Cal-cutta and Madras. It carried on the business primarily of manu-facturing and selling iron pipes and poles and has been employ-ing large number of workmen; !heir number being 922 on the relevant date. According to !he findings of the Tribunal, which have not been questioned, it is prosperous concern and between the years 1959 and 1964 the appellant paid its employees bonus equivalent to four months' wages every year except in I 961 -62. For the subsequent three years bonus was paid al the rate of four per cent under the Payment of Bonus Act, 1965 (Act XX! of 1965). The workmen were no1 satisfied with the payment at the rate of four per cent and raised dispute. On August 22, 1965. they made demand for bonus at the rate of 207o of their annual salary or wages for the accounting year 1966-67. Certain correspondence started between the Assistant Labour Commis-sioner, the Man;1gement and the General Secretary of the Cnion (Kalinga Tubes ivlazdoor Sangh). On September 21 1967, tl1e Manager (Administration) notified that bonus at the rate of 4% for the year 1966-67 had been sanctioned by the Management. The General Secretary of the l)nion asked the Manager to review the above notice and to send copy of the balance sheet for the accounting year in quesJion. On September 25, 1967, the Dis-trict Labour Officer infom1ed Jhe Manager that he had fixed Octo-ber 2, 1967, (11 a.m.) for discussion in the matter of the pay-ment of bonus. The \fanager sent copy of the balance sheet to the General ~cretarv of the Union on October l, 1967. On that day the General Secretary asked the Assistant Labour Com-missioner to examine the profit and Joss account for the year 1966-67 and to applv the requisite formula under the Payment of Bonus Act. On October I, 1967 about 150 workmen assem-bled after 2 p.m. at the gates of the Administrative Building in which about 40-4 7 members of the staff were present. They were not allowed to leave the Building till 5 a.m. next day. Mean-while the Officer-in-char2e Choudwar Police Station, Executive Officer, J\otified Arca Council Choudwar (a First Class Magis-trate), the Additional Superintendent of Police, Cuttack, the Sub-Divisional Officer Sadar ('utlack and the Assistant Labour Com-missioner went to the place wh~re all this w;is happening. The faclorv remained closed on October 2. I 967 on account of Gandhi Jayanti. On tlic morning of October 3, 1967 the Management issued notice declaring c.losure of the factory. Jt is common group that up till now the factory has remained closed. The \1ana~ement offered to pay wages for one month in lieu of nu!icc and reduced compensation under the proviso to sub-s. (I) of s. 25I'FF of the Industrial Disputes Act. 1947 (he•·einafter called the Act). It has not been disput.-,d that out of 922 workers 6 I 3 ·workers accepted compensation under the aforesaid provision. The remainin.2 workmen. however, neither agreed to nor accepted

any compensation. The reference under the Act was made on Novemb.~r 3, 1967 by the Government of Orissa primarily for adjudicating whether the appellant had declared lock out by means of the notice dated October 3, 1967 or whether it was closure.

The notice which was issued by the Management on the morn-ing of October 3, 1967 may be reproduced :

"The Management hereby no'.ifies that as direct consequence of the continued and sustained illegal acti-vities o.f the workmen and their preconcerted and pre-meditated acts since 1st October 1967 by illegally keep-ing confined and forcibly resisting the exit of the 6taff and some of the officers of the Company in the Adminis-trative Office building from about 2 p.m. of the 1st Oct. 1967 till they were forcibly rescued by the Police autho-rities at about 5 a.m. on the morning of 2nd October 1967 and thereafter continuing with their illegal tr,espass into the premises of the Company in the aforesaid Administrative Office, and refusal to allow entry of any of the staff and officers of the Company into the said building, and the consequent refusal by the officers and supervisory staff of the Company to carry on their normal work and discharge their functions being reasonably apprehensive of their safety, it has become impossible to continue to run the Factory and its sub-sidiary s.~ctions and Departments any further. The Company hereby notifies that there will be complete closure of the Factory on and with effect from 6 a.m. of the 3rd Oc'.ober 1967."

Before the Tribunal the main controversy centred on the question whether there was closure of its undertaking by the appellant or whether there was refusal to employ the workmen which would fall within the expression 'Lock out' as defined by s. 2 ( e) of the Act. The Tribunal found :-

(i) Since the morning of October 3, 1967 there had been no production by the factory of the appellant and the operatives had not been employed;

(ii) By September 30, 1967 there was absohiiely no idea to close down the undertaking or business as the Annual General Meeting of the Company had taken place on that date and there was no evidence that there was any meeting of the Board of Directors or of the shareholders between the Annual General Meeting and the issue of notice of October 3, 1967 to workmen which would show that any decision had been taken to. close down the undertaking.

(iii) The trade results of the business carried on by the Company during the year 1966-67 would never have induced any business man to close down the under-taking. The Company had earned net profit of 2.27 lacs of rupees after making payment of 20 lacs of rupees of loan to the Industrial Financial Corporation of India and incurring loss of Rs. 63, 720 in the disposal of certain loan bonds. Orders for manufacturing pipes had been received till October 2, 1967 for more quantities than were in stock. Similarly orders had been received for manufacturing poles. Therefore the Management could not have intended the closing down of the undertaking till the notice was issued.

(iv) The closure of the factory of place of work was direct consequence of the alleged illegal activities of the workmen and of the refusal by the officers and super-visory staff to carry on their normal work and not due to shortage of raw materials fuel or power.

The Tribunal concluded that the action taken by the Management in issuing the notire on the morning of October 3, 1967 and in suspending the work in the factory amounted to lock-out and was not closure. The Tribunal proceeded, however, to state the other steps which were taken by the Management. notice was given to the workers that they should hand over vacant possession of the quarters which had been allotted to them. letter was written to the Chief Minister of Orissa on October 2, 1967 that the Management had no other alternative but to close down the factory. Information was similarly sent to the Super-intendent of Police Cuttack in which request was also made for posting platoon of police force in the factory premises at the Company's cost. copy of the notice of closure dated October 3, 1967 was sent to the Chief Inspector of Factories. It was pointed out to the Tribunal that the employees in the Branch Offices at Calcutta and Madras had already been discharged and the members of the staff at Choudwar had been notified that their services would be terminated within period of three months after the closure by January 3, 1968. The Tribunal considered that all such action which had been mentioned was taken con-sistently with the notice of closure. Ti was held that the Manage-ment had in fact declared lock-out in the guise of closure. The Tribunal was considerably influenced by the absence of any evidence that the business of the Company was going to be wound up or the Company was going to he dissolved.

The Tribunal next proceeded to decide whether the declara-tion of n lock-out was legal. It was found that two cases relat-ing to gratuity and retrenchment between the same periods were pending adjudication before the Tribunal and therefore decla-

ration of lock-out contravened the provisions· of s. 23 of the Act; such contravention being illegal under s. 24. It was noted that the assertion of the Union that the workmen went to work in the factory on the morning of October 3, 1967 had not been chal-lenged on behalf of the Management. According to the Tribunal the declaration of lock-Out had been made only because por· tion of large number of workmen had assembled at the Adminis-trative building•of the Company and demanded bonus at higher rate during their off time. Further the Standing Orders of the Company made ample provision for taking disciplinary action for misconduct of the workmen. It was, therefore, improper on the part of the Management, so says the Tribunal, to remove all the operatives of the company; even most of them were admittedly not present at the scene of occurrence. The following portion of the order of the Tribunal,, however, deserves to be reproduced : "But the immediate cause for declaration of the 3rd October 1967 though couched in exaggerated language in Ex. 44 was undoubtedly the action taken by some of the workmen at the Administrative building from about 2 p.m. of the 1st October 1967 till 5 a.m. of the 2nd October 1967. There cannot be any manner of doubt that about 40 members of the staff working in that build· ing. had at some stage been prevented from going out. Officers from the Labour Directorate, Police Officers and Magistrates admittedly went there. It was not pleasure with them to keep vigil over the building for that entire night for nothing. The Secretary of the Mazdoor Sangh remained pres.ent there. It does not appear from the evidence that he requested the assembl· ed workmen to leave the premises of the Administra-tive building when the chance of N. K. Mahapatra, the Manager (Administration) or any other Senior Officer going there became absolutely remote. Such conduct on the part of the Secretary of the Union and some of the workmen can hardly be appreciated."

The Tribunal directed that the workmen should be given by the Management at least half of the wages respectively due to them normally for the period between October 3, 1967 and such subse· quent date when they would be reinsiated in their respective· posts and allowed to work in the factory. It declined to determine what compensation would be payable to the workmen under the provisions of s. 25FFF of the Act if it was case of closure.

Mr. Sachin Chaudhury for the appellant Company has con· tended that the approach of the Tribunal to the determination of the dispute referred has not been altogether correct. According to him the essential and basic question was whether the under· taking of the appellant Company had been closed do\vn on

[_19691 I SC R

October 3, 1967. The question of ;i lock-out could only arnc if the Jlrst question \\·as an..;\~;en:d in the negative. According to \,Tr. Chaudhury even if it were to be found-that the undertakin~ had not been clo~~d down it did not neccssarilv folio,\• that there had been lock-out. At any rate. the matler of clllsure h:u.J to be decided witlwut mixing it up with wnsidcrations relev;int for lockout.

l\ow 111 the Act s. 25FFF alone contains prOViSIOJb "iiich relate to closing down of an undertaking. The exp;·ession "closure" which has been frequently used by th~ Tribunal as :dso '.1y us is nowhere defined and this expression can onlv be used for lhe sake of convenience. In lnduslria! law. - apart from closure. the MlTke1\ can he put out of action lw lav off. dcfincJ by s. 2!kkk). Jock-mll. defined hy s. 21 i) :uid i·etrcnchmcnt, defined bys. 2(00).

Seclion ~5FFF so far as it is malerial for our purp<>ses re;ids :-

"(I) Where an undertakin~ is closed down for ;iny reason whatsoever, ewry workman who has been in continuous service for not less than one year in that undertakin~ immedi;itelv before such closure. shall. sub-ject to the. provisions of sub-section (2) he entitled to notice and cnmpcnsJtion in accordance wilh the proVJ. sions of section 25F, as if the workman had been r~­trenched :

Provided !hat where the undertaking is closcJ down on account of unavo:dahle circuniq;1nces beyond the control of the employer. the compensJtion to he paid to the workman und-~r claus~ (h) of Section 25F shall not exceed his average pay for three months. Expla11ario11.-An undertaking which is closed down bv reason merelv of financial difficulties (including fi'nancial losses) 'or accumulation of undisposeJ ,j[ .s4xks I or the expiry of the period of the lease or ihe licence ~ranted to it where the period of the lease or thi: licence 'expire on or after the first day of April 1967) shall not be deemed to have h.een closed down on ac-count of unavoidable circumstances beyond the control of the employer within the meaning of the proviso to lhis sub-section. ·

ft is obvious that if the appellan• Company had clo;ed down it.s undertakino on the morning of October 3. 1967, no oth~r qw~s­tion \\'iii a~·i..;c except in the 111attcr of relief in\·olvin~ pay1n_cnt

of compensation which has to be on different bases acc_ording as the case falls within the first sub-section or the proviso there-to.

The case of the Management itself was that the events which took place between the after-noon of October 1, 1967 and the early morning of October 2, which may compendiously be called gherao were solely responsible for the decision to close and the actual closure of the factory as also the undertaking with the exception of the continued working of the waterworks which was meant for supply of water to the colony which had developed around the factory. It was never claimed nor has it been claim-ed before us on behalf of the Management that it was due to any financial or economic reasons or other compelling circumstances of similar nature that the closure was effected. So far as the present case is concerned the 'Tribunal travelled into an extrane-ous and irrelevant field when· it took into account the profitable business which the company was doing and the profits which it was making or was expected io make. The Tribunal was appa-D rently labouring under the impression that according to certain judicial decisions there can be closure of an undertaking only when there are financial difficulties and the undertaking becomes losing concern. It is difficult, and indeed . no such principle entrenched in Industrial law has been brought to our notice, to accept that the closure of an undertaking can be limited or res-tricted only to financial, economic or other considerations of like nature. All that has been laid down is that in case of closure the employer does not merely close down the place of business but he closes the business itself finally and irrevocably vide Express Newspapers Ltd. v. Their Workers & Staff & Others('). The closure has to be genuine and bona fide in the sense that it should be closure in fact and not mere pretence of closure. (Tea Districts Labour Association, Calcutta v. Ex· Employees of Tea District Labour Association & Another('). The motive behind the closure is immaterial and what has to be seen is whether it was an effective one. vide The Andhra Prabha Ltd. & Ors. v. The Secretary Madras Union of Journalists and Ors.([3 ]) In Andhra Prabha's case the Board of Directors of the Company had passed resolu'.ion to sell items of printing machi-nery and equipment to one private limited company followed by an agreement in writing on April 22, 1959 between the two com-panies. On April 23, the workers were informed that the com-pany had sold the right of editing and publishing in regard to the publications. On the next day the workers adopted resolution to go on strike. Some acts of sabotage and gross indiscipline were committed but the strike of the workers started on Acri] 27, 1957. The _publication of all the papers was consequently (1) [19621 2 Ll.J. 227, 232. (2) [1960] 3 S.CR. 207, 213. (]) [1967] 3 S.Ci(. 901.stopped. On April 29, 1959, closure notice was published. It would seem that the closure was found, apart from other facts, on the evidence of Ram Nath Goenka, the Chairman of the Board of Directors that after the demonstration of the Jabour.:.rs before his office on April 28, 1959 and the prevention of ingress and egress of the members of the staff to and from the oflice build-ing he decided to close down his undertaking at Madras. ln Indian Hume Pipe Co. Ltd. v. Their Workmen(') decided on February 8, 1968, the question was whether the closure of the factory at Barakar in West Bengal by tl1!.! appellant which was big engineering concern having factories and establishment spread all over India and Ceylon, was illegal and unjustified. The whole area of the factory and its surroundings including the Grand Trunk Road was coal bearing land from which coal had been extracted from very long time. There had been sub-sidence of the earth on two occasions. As result the approach road to the appellant's factory had been badly damaged, apart from the damage to portion of the Manager's quarters. The Chief Inspector of Mines wrote to the appellant that its factory was situated in place which was dangerous for habitation. In December 1964, notice was giv.cn of closure and termination of service to all the workmen individually. The Tribunal while holding that the factory had been actually closed down with effect from January 1, 1965 went into the question as to whether the closure of the factory was bona fide and justified. The reason for closure was attributed to certain disputes which had been takin.g place between the appellant and its workers from 1957 onwards. This is what Mitter, J. speaking for the Court said, "In our opinion it was not open to the Tribunal to go into the question as to the motive of the appellant in closing down its factory at Barnkar and to enquire whether it was bona fide or ma/a fide with some oblique purpose, namely, to punish the workmen for the Cnion activities in fighting the appellant". It was emphasised that the expression 'bona fide' used in certain decisions of this Court did not refer to the motive behind the closure but to the fact of the closure. The decision in the Workers oj the Pudukottah Textile Mills v. The Management{") is quite apposite for the purposes of the present case. The Pudukottah Textile Mills had been working since 1948. By 1959 the financial position of the Mills was in bad way. The Manao,e-mcnt had chan~cd hands and the relations between the Union to which the workers belon~cd and the new Management were not very cordial. The new Mana!'_cment tried to bolster up the. ri~al union which would be amenable to its control. In 1960 nre broke out· in the godown of the Mills which resulted in the des-truction of very large part of the cotton stored in the godown. The new Management gave notice on May 26, 1960 stating that (I) [1968] 3 SCR. 130. (2) C.A. ~o. 1005of1963.

the work would remain suspended until further notice because of the fire. On June 7, 1960, the new Management notified that the Directors had decided to close down the Mills with effect from June 8, 1960. Thereafter the M:lls closed down and dispute arose about closure. The reasons given by the Management for dosing !he Mills were (i) unsatisfactory fina~cial positio~.; (ii) diflicnlty in procuring cotton at reasonable pnces; and ( m) the possible risk involved in storing cotton. Only month later on August 11, 1960 the Directors decided to reopen the Mills .. It was stated that this was done on account of the representatlons received from the workmen who had been thrown out of employ-ment etc. large number of old workmen were re-employed but substantial number of them were not re-employed. This Court expressed the view that the past history of disputes between the new Management and the Union of the appellant would not be sufficient to draw the conclusion that the closure which took place on June 8, 1960 was not bona fide closure. It was held that the closure was genuine and there were three clinching circum-stances. The first was that the closure was necessitated by the fact that very large quantity of stock of cotton was burnt by fire which broke out in May 1960 anJ! which :esulted in loss of cotton worth rupees five lacs to· the Mills which were already rn difficult financial position. The second circumstance was that large amount of money was paid as retrenchment compensation by the Mills. The third circumstance was, which was considered to be conclusive, that the new Management felt that the Union of the appellant might have been behind the fire. Moreover in letter by the new Management to the Co111J11issioner of Labour sus-picion was expressed about sabotage in the matter of fire. The Court felt that if the Management had closed down the Mills be-cau~~ of suspicion that the fire was the result of sabotage and not mere accident and that it would not be safe to reopen the factory in the near future, it could not be said that the closure was not bona fide and was resorted to merely for smashing the Union.

The discussion of the above· decisions yields the result that the entire set of circumstances and facts have to be taken into account while endeavouring to find out if, in fact, there has been cl?sure and the Tribunal or the court is not confined to any particular fact or set of facts or circumstances. In one case the Management may decide to cl0se down an undertaking because of fi.nancial or purely business reasons. In another case it may decide in favour of closure when faced with situation in which it is considered either dangerous or hazardous from the point of view of the safety of the Administrative staff or members of the ;Management or even the employees themselves to carry on the business. The essence of the matter, therefore, is the factum of closure by whatever. reasons motivated.Thc1c can he no manner of doubt from what has b.~cn fo~nd by the Tribunal itself that large number of workers, about l 50 of .them virtuaJ.!y >taged ghcrao durinµ the several hours prc-cec11~g the dcclarat1011 of closure. lf their demand was purely one ll1 respect of bonus there W'1S no justification for keeping about 40 members of the Administrative staff virtual!s· coniined inside the building and stoppin~ all ingress and egrcs~ as appa-re1otly was the case. till the police came to the rescue. It is in the evidence of Shri Jlarekrishna Mahapatra who was Ofl!c.~r Jn-chargc of the Police Station Choudwar and whose evidence docs not appear to has·e been fully read by the Tribunal that he arriv~<l at the Administrative ottice at 4 or 5 p.ni. on October 1. l %7. He reported the incident to the Supcrintendcrt of Police and the Sub-Divisional OJ!icer Cutlack. The latter directed the E:-;ccutivc Ol!iccr Choudwar to take char~c of the situation. He came to the spot. Other ofilccrs also ... rrivcd. It v.'as on \\·arn!ng by the Sub-Divisional Oflicer that force would be used unless the worl-crs left that thcv \\ent awas· and allowed the olliccrs to leave the buildinc. Durin~ th.~ period he was there some canteen bovs brought tiffin at about I J .30 p.m. for the staff but i: w;1, not allowed to be taken to them. Some of the worke1·s t hrcw the san1e a,,·ay and sonic p~\rtook of it.

question immediately arises whether t!J,; Man;igemcnt could take quick decision to close the undertaking of manu-facturin~ iron pipes and poles on account of the glwrao the magni-ti.:dc of which was not inconsequential and which wa.s likely to rc:.:.ult in deterioration of relations bct\\·ccn the Managcnv:nt and the sH>rkers as also the apprehension cxprc>sed by the sta!T of danger to personal safety. It is 1101 possible to say in catc~orical terms that closure in the aforesaid backcround and circu1mtan-:cs would not be genuine or that great deai'or suspicion would attach to the action taken simply hec;1use the Company was profita:1le and ... ~oina ~ concern. There are numher of supplemental facts . . . . which show that the Management was faced with s1tu;1t1on rn which it could well take decision to close down the undertaking. TI1e Deputy Chief Accounts Officer wrote letter to the Manager (Administration) on October 7. 1967 (Ex. 3) giving his version of what was experienced hy him. It was pointed out th;11 the staff had to pass thrnu.~h anxious hours under ;onditions of tor-ti:re due to wrongful confinement. Tt was only at 5.30 a.rn .. o.n the morning of October 2. that they were rescued by the Sut>-D1v1-.;:onal Officer with the help of strong po\;ce cordon. The lctlcr concluded hy sayin.~ "c.onsidering the above circumstances, unless an assurance io.; given and adequate arrangcn1ents arc n1:.1dc for the protection and safety i:f. the sta!T in the Administrative Oflk~ B~tildin~. I re~rct my mabil1ty to attend office from tomo1 row. A;~ application received from the staff of the Accounts Depart-

ment on similar lines (Ex. 4) was also enclosed. As mentioned before, the Tribunal has itself noted and castigated the conduct of the workmen and the Secretary of their Union who was pr~­sent during the material period and who did not make any effort to persuade the assembled workmen to leave the premises of the Administrative Building.

Mr. Govind Das for the respondent workmen has not serious-ly challenged what he calls the Management's prerogative to close down the undertaking, but according to him the Manage-ment is not at liberty to ignore all business reasons which must from the paramount consideration for taking such decision. He has also emphasised that the closure should be of the entire business which means, according to him, that the Company should have been wound np. He has stressed the various matters whic!1. prevailed with the Tribunal about the absence of evidence to show that any decision was taken by the Board of Directors or the shareholders of the Company to close down the undertaking as whole. It is maintained by him that it was only the manufac-· luring part of the undertaking which was stopped and this can-not possibly be equated with the closing down of the undertaking itself. It must be remembered that the notice which was served by the Management in the matter of ciosure contained an affirma-tive declaration not only about the closing down of the factory but also that compensation would be payable under the proviso to s. 25FFF ( 1). It was open to the respondents to ask for production of any resolution passed by the Board of Directors or other formal decision taken by the Management and if any such attempt had been made and the necessary documents had not been produced all adverse inferences could have been legitimately drawn against the Company. There is no evidence that the action· taken by the Manager (Administration) was not ratified or accept-ed by the Board of Directors or any other officer who was com-petent to accord approval. As matter of fact, it appears that large number of employees at Calcutta and Madras ofliccs as also at the Choudwar office had been discharged from service or notices of termination of service had been served on them ( vide Ex. 29 and the statement of Management witness No. 4 G.C. Rath, page 164 of the printed record). It appears from Ex. 33 that only very small staff of officers and workers had been re-tained in service out of the permanent cadre. There is no indi-cation that after the closing down of the factory, any orders were Jeing obtained or executed in the matter of sales.. Ii is difficult to accede to the contention of Mr. Govind Das that the Company must be wound up or that there should have been transfer of the machinery or the factory before it could be said that the under-taking had been closed down.

It is significant that in the ca-;e of the Workers of tire Pudu-kottah Textile Mills(') there had neither been winding up of the entire business nor had the machinery or the factory been dis-posed of and actually the Mills had been reopened only after an interval of few months and yet it was held that there had been closure.

\lr. Govind Das'"" sought to reinforce the view of the Tribu-nal that in the notice relating to closure all that was stated was that the factory would be closed. This, according to him, attract-ed the application of the rule laid down in the Express Ncwspaprrs Limited(') case decided in 1962. that in case of closure the employer does no1 merely close down the place of business but he closes the business itself and so the closure indicates the final and iJTevocable tennination of the business itself. Lock-out. on the other hand, indicates the closure of the plac~ of business and not the closure of business itself. The mere statement in the notice, however, cannot be conclusive in the present case and it is the totality of facts and circumstances on which conclusion has to be reached whether the undertaking was closed down.Ordinarily, as is well known. this Court does not interfere with findings of fact of Tribunal, but the question whether the under-taking was closed down or not by means of the notice dated October 3, I 967 was not considered in proper manner by the Tribunal and its approach was erroneous and suffered from number of infirmities of such nature that the conclusion arrived at by it cannot be regarded as sacrosanct or final. The entire facts and circumstances established in this case impel us to hold that the Management of the appellant closed down ils principal undenaking viz. of manufacturing and selling iron pipes and poles on October 3, 1967. It may be mentioned that it was and is not the case of the respond!.:nt that the continuation o[ water supply meant continuation of the undcrtakinr: of the appellant.

The only question which now remains to he dctennined is whether the undertaking was closed for "any reason whatsoever"' or it was "on account of unavoidable circumstances" beyond the control of the employer. The measure of compensation payable when an undertaking is closed down for any reason whatsoever is different as provided in sub-s. (I) which refers to the provisions of s. 25F as if the workmen had been retrenched. Jn the notice served by the Management in the present case it was claimed that the undertaking had been closed down under the proviso to sub-s. (1 ) and actually compensation has been paid to the 61' "'''rkers in accordance with the proviso.

(2) (19'12] 2 L.l.J. 2::!7, ::!3::!.

Mr. Chaudhuri has submitted that the main circumstances which were both unavoidable and beyond the control of the em-ployer were (a) the gherao and (b) the apprehension of the staff of danger to personal safety. These circumstances w_ere not the creation of the employer but of the workmen who mdulged m the gherao. According to Mr. Chaudhury decision had to be taken preceding the issuance of the notice by the Management whether the undertaking should be closed down. The aforesaid circumstances prompted the Management to take decision in favour of closure and therefore the notice rightly mentioned that compensation would be payable under the proviso. He has drawn attention to decision of learned Single Judge of the Calcutta High Court in Mis Bhattacharya Rubber Works Private Ltd. v. Bhattacharya Rubber Works Workers Union & Ors('). In that case there had been lock-outs, strikes e'c. followed by slow down of work. prominent member of the workers' Union declared over loudspeaker that there was going to be bloodshed. bomb was thrown cnto the canteen and there were several cases of stabbing. When some machinery was being removed for re-D pairs, some workmen obstruc'ed the transfer of the machinery. There wer.e further cases of stabbing followed by criminal prose-cution. Ultimately the founder Director and the other Directors of the Company found it impossible to carry on the business and were forced to close down. Apart from the question of factum of closure it had to be decided whether the closing down of the undertaking in that case was for unavoidable circumstances be-yond the control of the employer. D. N. Sinha, J. (as he then was) expressed the view that where the circumstances amounted to vis major or acts of God or enemy action or an act of State in exercise of its powers of Eminent Domain, that of course would be circumstances beyond the control of the employer. But the matter did not stop there. The closure must be bona fide and it must not be arbitrary. According to him circumstances could not be called unavoidable if the employer by actinll in business-like way or as prudent man of business could avoid ii. He was not expected to take negative attitude. But at the same time he was not called upon to make any unusual effort fo avoid any particular circumstances necessitating closure of his business. Reliance was placed on the observations of Tindel C.J.. in Granger v. Dent(') in which charter party contained the expres-sion "unavoidable impediment". It was found by the learned Judge tha'. all the instances which had been mentioned ·showed that the matter had gone out of hand. Undoubtedly. if :he Management had engaged an army of Darwans they could have restored peace but that was not what the employer could be compelled to do as he was entitled to run his business in normal manner. The closure had been made bona fide and was real. (1) A.1.R. 1960 Cal. 356. (2) [1829] 173 E.R. 1229.

L12 Sup C.I./68-5

The company went into liquidation and the excise licences had been surrendered. All this would not have been done unless the Management found tliat it was impossible to continue the work of the factory in the prevailing circumstances.

Tb.'! circumstances which had been proved in the Calcutta case were much stronger than the present case in which there had certainly been gherao for the period mentioned previously but there bad been no incidents involving physical violence nor series of incidents of any kind for any length of period pre-ceding the gherao. 1'."o speech had been delivered by any of the representatives of the workers threatening or inciting bodily in-jury. With the exception of the gherao, therefore, there was nothing to furnish justification for the Management for thinking that the working of the factory would involve unusual exertion or expense.Mr. Chaudhury had laid good deal of stress on the appre-hension expressed in some of the letters, already noticed, of the members of the staff which was conveyed to the Management by means of Exs. 3 & 4 dated October 2. But in those letters it was clearly stated that the staff would not be able to attend the office unless arrangements were made for their protection and safety. The evidence of the Station House Officer, Harekrishna Mahapatra was that the police force which had been sent at the time of the happenings on the material dates had not been with-drawn even up to the time he gave his deposition before the Tri-bunal and that the factory and the surrounding premises were being watched and guarded by am1ed police force till Bali Jatra and thereafter by the Orissa Military Police. There is nothing to indicate that the polic~ had refused to give protection even to the individual members of the staff or the expenditure or cost of se-curing protection for them would have been so exorbitant that the company could not have afforded it.

Mr. Chaudhury quite properly and fairly accepts that the burden was on the company to bring the case within the proviso 1•nd to prove that the circumstances were unavoidable and were also beyond the control of the company for closing down the 1mdertaking. Furthermore such determination has to be objec-1ive on such evidence as may be placed on the record. It is signi-licant that neither N. K. Mahapatra, the Manager (Administra-tion) who had issued the notice dated October 3, 1967 nor any Director or other principal officer of the company was produced by the Management before the Tribunal to give any other facts and circumstances from which it could be inferred that it ap;:iear-ed to the Management that it was not possible to carry on the busine~s by acting in business-like way and without unusual exertion.

The explanation appearing in the proviso gives some indica-tion of the anxiety of the legislature to .expressly rule out certain contingencies which ordinarily could have been pleaded by the employer as unavoidable circumstances beyond his control. In the normal working of business of commercial undertaking financial losses or accumulation of undisposed of stocks and the expiry of the period of the lease or the licence can ordinarily go long way in establishing that it has virtually become impossible to carry on the business. For instance, j,f company is heading towards liquidation its business will, in normal course, have to be closed down. Similarly if the period of lease of the site on which factory has been set up has expired and there is no pro-vision for its renewal or extension it would ordinarily present an insurmountable difficulty in the way of the working of an under-taking by company or commercial concern. Nothwithstand-ing all this the legislature provided that in spite of the aforesaid difficulties or impediments or obstacles the conditions of the pro-viso would not be satisfied merely by the happening or existence of the circumstances embodied in the explanation. The reason for doing so seems to be that whenever such difficulties, as are mentioned in the explanation, arise the employer is not expected to sit idly and not to make an all out effort like prudent man of business in the matter of tiding over these difficulties for sav-ing his business. The legislature was apparently being very stringent and strict about the nature of the circumstances which would bring them within the proviso. The laying. down of two pre-conditions therein in the language in which fhey are couched is significant and must be given due effect.

After considering the entire facts and circumstances of the present case we are not satisfied that the closure of the under-taking was due to unavoidable circumstances beyond the control of the appellant. Thus compensation would be payable as if the undertaking was closed down "for any reason whatsoever" with-in s. 25FFF (1) of the Act.

In the result the appeal is allowed and the award of the Tri-bunal is set aside. The appellant shall be liable to pay compensa-tion under the ·principal part of sub-s. ( 1) of s. 25FFF of the Act. In view of the entire circumstances the parties are left to bear their own costs.

Appeal allowed.