NAVALKHA & SONS versus SRI RAMANYA DAS & ORS.

NAVALKHA & SONS

SRI RAMANYAJ>AS & ORS.

October 27, 1969

[V. RAMASWAMI AND I. D. DuA, JJ.]

Companies (Court) Rules, 1959, r, 273-Sale of properties of com· pany in liquidation-Principles to be followed by Judfe exercising discretion.

Jn the winding up proceedings of company in liquidation, the official liquidator and share-holder sought permission of the High Court for the sale of immovable and movable p·roperties and actionable claims of the company. The company Judge appointed commissioners for the sale in accordance with the terms and conditions mentioned in bis order. One of the conditions was that the proclamation of sale was to be adver-tised twice in each of 5 leading daily newspapers. The commissioners had the proclamation published in only 4 dailies and it was only .in two of them that there were two insertions. No offer having been received, the time fixed was extended when the appellant made his offer as the sole offeror. The commissioners applied to the Judge for confirmation of sale, but before the sale in favour Of the appellant was confirmed another person made an offer of larger amount complaining that he could not make the 'offer earlier as there was no adequate publicity. The Judge there-upon arranged an open bid in the Court itself on that very day, as between the appellant and the ""w offeror. .The appellant became the highest bidder and the appellant was directed to pay the balance of amount by part~cular. date, but again, before the sale in his favour could be con-firmed;. third person made an application offering still large amount, complaining of the want of adequate pubJicity and advertisement of the sale. The Judge rejected the application and confirmed the sale in favour of the appellant. Jn appeal, the Letters Patent Bench set aside the order af the single Judge and directed that he should take fresh steps for sale of the property either by calling for sealed tenders or by auction in accordance with law.

In appeal to this Court,

HELD : When the acceptance of an offer by the commissioner is subject to confirmation by the court, the offeror does not by me're accep-tance get any vested right in the property and he cannot demand aul!'· -!!latic confirmation of his offer. It is the duty of the court to satisfy it-self that having regard to the market value of the property the price offered is reasonable, even though there is no suggestion of irregularity or fraud. Otherwise, the act of confirmation of the sale would not be proper exercise of judicial discretion. But once the court comes to the conclusion that the price offered is adequate, no subsequent higher offer can constitute valid !?round for refusing confilrmation of the sale or offer already received. [5 D-F; 6 A-BJ

In the present case, the publicity was not as wide as originally pro· posed. Therefore. the single Judge was right in refusing tO confirm t~e first offer of the appellant. and holding an auction .. But he erred m confinin~ the auC:tion to two persons only. ·The auction was ne dou.bt conducted in public place but it was not open to the general pubhc,

nor was it held after due publicily. Therefore, the sale was not public sale, wh~ch impli~s .. sale after giving notice to the public with liberty to t~e pubhc to par11c1pate. Rule 273 of the Companies (Court) Rules, pro-vides that all sales shall be made by public auction, or by inviting sealed tenders, or in .such manner as tlte Judge mc;y direct. Since the're was want of publicity and there was lack of opportunity to the public to take part in the auction, and there was inherent prejudice in the method adopted by the Judge, the acceptance of the appellant's bid by the Judge \Vas not sound exercise of discretion and the Division Bench was right in directing fresh sale. [6 B.C; 7 A-B, C-D. F]Gordhan D,as Chuni Lal v. T. Sriman Kanth_hnathinatha Pillai, A.I.R. 1921 Mad. 286, Rathnaswami Pillai v. Sadapathi Pillai. A.I.R. 1925 Mad. 318, S. Soundarajan v. M/s. Roshan & Co. A.l.R. 1940 Mad. 42, and A. Subbraya Muda/iar v. Sundararajan, A.I.R. 1951 Mad. 986, referred. to.

Crv1L APPELLATE JURISDICTION : Civil Appeals Nos. 1085 and 1086 of 1967.

Appeals from the judgment and decree dated September 24, 1965 of the Andhra Pradesh High Court in 0.S.A. Nos. 3 and 4 of 1965.

V. S. Desai and P. C. Bhartari, for the appellants

(in both

the appeals).

P. Ram Reddy and A. V. V. Nair, for respondent No. 5 {ID C.A. No. 1085 of 1967) and respondent No. 6 (in C.A. No. 1086 of 1967).

R. V. Pillai, for respondent No. 6 (in C.A. No. 1085 of 1967) and respondent No. 5 (in C.A. No. 1086 of 1967).

The Judgme;nt of the Court was delivered by

Ramaswami, J. These appeals are brought by certificaie from the judgment of the Andhra Pradesh High Court dated September 24, 1965 in O.S.A. Nos. 3 and 4 of 1965. ·

In the winding up proceedings of Hyderabad Vegetable Pro-ducts Co., Ltd. (in liquidation) the 5th respondent (Official Liquidator) sougbt permission of the Court for the sale of im-.movable and movable properties and actionable claims of the Company. This application was Company Application no. 67 of 1963. shareholder of the Company one Sirajuddin Babu Khan also made an application C.A. No. 93 of 1964 to similar effect. On these applications an order was passed by Jagan Mohan Reddy J., on April 17, 1964 appointing respondents 2, 3 and 4 as Joint Commissioners for the purpose of selling immov-able and movable properties and actionable claims of the afore-said Company in accordance with the terms and conditions men-ti<med in the order. Accordingly sale proclamation August 1. 1964 was drawn and issued by the respondents 2 to 4 inviting offers for the purchase of movable and immovable properties and aetionable claims of the Company, as single unit. According

NAVALKHA & SONS v. RAMANYA (Ramaswami, I.)

to the terms and conditions of sale the Commissioners were not bound to accept the highest offer and were at liberty to reject any offer without assigning any reason. Immediately after the .offer was accepted by the Commissioners tbe offeror had to deposit 15 % of the offer amount as initial deposit and the balance of the amount together with the amount required on non-judicial stamp paper within 15 days from the date of acceptance. Acceptance of the offer by the Commisioners was subject to the condition of confirmation by the High Court and the offeror was entitled to t~ke delivery of possession of the properties only after such con-firmation. It was made abundantly clear in cl. 16 that in all matters relating to the sale of the properties the decision of the Commissioners shall be final and shall be binding subject to the control of the High Court. One of the conditions also was that the proclamation of sale was to be advertised twice in each of the ilve leading dailies The Statesman, The Times of India, The Hindu, Indian Express and the Hindustan Times to ensure wide publicity and the Commissione·rs were also required to get. the proclamation printed and distributed among the likely purchasers. The Commissioners got published the proclamation in four lead- · ing dailies only : the Hindu, Indian Express, The Statesman and the Hindustan Times. No publication was made in the Times of India nor was the advertisement made twice in any of the said newspapers. In two of them there were two insertions but in the remaining papers there was only one insertion. In addition to the advertisement the Commissioners got printed 300 copies and posted them to various industrial co,ncerns. The last date fixed for the receipt of the off.ors was September 8, 1964. Not even single offer -was received by that time. The time for re-ceipt of offers was extended by the Court to the end of Novem-l'er, 1964 ai the instance of the Commissioners. The appellant Navalkha & Sons happened to be the sole offeror. It has offered sum of Rs. 7,91,001 which was made of Rs. 2,50,000 for the immovable property and Rs. 5,41,001 for the machinery. It made no offer for the actionable claims. The appellant made deposit of Rs. 50,000 in the shape of demand draft drawn on the State Bank of Hyderabad. The offer was accepted by the Commissioners on December 2, 1964. The appeilant wa~ called upon to deposit 15 % of the amoun.t of the offer as initial deposit immediately and the balance together with the amount required for non-judicial stamp paper within 15 days from the date of acceptance. The appeliant did make the initial deposit. The Commissioners then made an application on December 3, 1964 to the High Court for confirmation of the sale. On December 11, 1964 the High Court extended time for payment of the balance amount for two weeks. On December 24, 1964 one Gopaldas Darak made an offer of Rs. 8,50,000 saying that he could not offer in time because he came to know of the sale only two days.Prior to that date and it was due to the fact that there was no .adequate· publicity. To show his bona fides he gave demand draft for sum of Rs. l,00,015. 'The learned Judge decided that the property did not fetch its proper price and there was possibility -Of higher bids. Instead of directing fresh auction or calling for fresh offers the learned Judge thought it proper to arrange an -0pen bid in the Court itself on that very day, as between the appellant and Gopaldas Darak. Before starting the bid the learned Judge gave time to the appellant to think over and say whether it was willing to accept the course decided upon and to ,participate in the auction bids. The appellant consented and volunteered to take part in the bid and became the highest bidder .at Rs. 8,82,009. The 1~arned Judge accepted the said bid as final bid and concluded the sale in favour of the appellant direct-ing it to pay the balance of the money together with the amount required for non-judicial stamp on January 31, 1965 making 'it clear that in case of default the deposit already made would be forfeited. The appellant paid the balance of the amount on January 30, 1965. On the same day one Padam Chand Agarwal made ~ application (C.A. 44 of 1965) offering Rs. 10,00,000. He· complained that publicity of the sale of the property was not adequately made and he came to know of the advertisement very 1ate. He was prepared to enhance the offer to Rs. 10,00.000 and was also willinp, to participate in open bid if the Court so .decided with Rs. I 0,00,000 as initial bid. The learned Judge rejected his request and by his order dated February 19. 1965 ·held that the sale should be confirmed in favour of the appellant. Aggrieved by this Order Padam Chand Agarwal filed appeal no. 4 of 1965. One Ramnuja Das, contributory also chose to prefer an appeal (appeal no. 3 of 1965) against the order of confimrn-tion. According to him, the publicity given was inadequate and the first offer given· by the appellant was too low and the Court has rightly refused io confirm the acceptance of the offer. His grievance was that the learned Judge should have held the auction only after due publicity but has not done so and the cOUrse followed did not achieve the object of getting adequate price of the property.

Both appeals 3 and 4 are. therefore, directed against the con-firmation of the auction sale held in Court on December 24, 1964. These appeals were allowed by Letters Patent Bench consisting of the Chief Justice and Kumarayva J.. and the order of the learned single Judge dated Februarv 19. 1965 read with his pre-. vious order dated December 24, 1965 was set aside. It was directed that the learned Judge should take fresh steps for the sale of the propertv either bv calling sealed tenders or by auction in accordance with law. The tenders would be called or the auction would take olace with the requisite condition of minimum offer or starting bid of Rs. 10,00,000.

. vious order dated December 24, 1965 was set aside. It was

It was ar_gued by Mr. V. S. Desai on behalf of the appellants that the discretion of the learned Company Judge was not errone-ously ex.ercised when he accepted the bid of the appellant in the auction held on December 24, 1964 and consequently there was no _justification for the Division Bench to interfere with the order of the learned Single Judge. We are unable to accept this argu-B ment as correct.

Rule 273 of Companies (Court) Rules, 1959 is to the follow-ing effect :

"Procedure at sale.-Every sale shall be held by the Official Liquidator, or, if the Judge shall so direct, by an agent or an auctioneer approved by the Court, and subject to such terms and conditions, if any, as may be approved by the Court. All sales shall be made by public auction or by inviting sealed tenders or in such manner as the Judge may direct."

The principles which should govern confirmation of sales are well-established. Where the acceptance of the offer by the Com< missioners is subject to confirmation of the Court the offeror does not by mere acceptance get any vested right in the property so that he may demand automatic confirmation of his offer. The condition of confirmation by the Court operates as safeguard against the property being sold at inadequate price whether or not it is consequence of any irregularity or fraud in the conduct of the sale. In every case it is the duty of the Court to satisfy itself that having regard to the market value of the property t11e price offered is reasonable. Unless the Court is satisfied about the adequacy of the price the act of confirmation of !he sale would not be proper exercise of judicial discretion. In Gordhan Das Chuni Lal v. T. Sriman Kanthimathinatha Pillai(') it was ob-F served that where the property is authorised to be sold by private contract or otherwise it is the duty of the Court to satisfy itself that the price fixed is the best that could be expected to be offered. That is because the Court is the custodian of the inte-rests of the Company and its creditors and the sanction of the Court required under the Companies Act has to be exercised with judicial discretion regard being had to the interests of the Com-G pany and its creditors as well. This principle was followed in Rathnaswami Pillai v. Sadapathi Pi//ai([2 ]) 'and ·S. Soun!daraian v. Mis. Roshan & Co.([3]). In A. Subbaraya Mudaliar v. K. Sundara;an(') it was pointed out that the condition of confirma-tion by the Court being safeguard against the property being sold at an inadequate prjce, it will be not only proper but neces-· sary that the Court in exercising the discretion which it un-doubtedly has of accepting or refusing the highest bid at the auc-

(l) A.LR. 19'1 Mad. 2R6.

(2) A.J.R. 1925 Mori. 318.

(4) A.T.R. 1951 M,a. 986.

(3) A.l.R. 1940 Mad. 42.

tion held in pursuance of its orders, should see that the price fetched at the ·auction is an adequate price even though there is no suggestion of irregularity or fraud. It is well to bear in mind the other principle which is equally well-settled namely that once the court comes to the conclusion that the price offered is ade-quate, no subsequent higher offer can constitute valid ground for refusing confirmation of the sale or offer already received. (See the decision of the Madras High Court in Roshan & Co's case(')In the present case the Division Bench has come to the con-clusion that publicity was not as wide as originally proposed by the Commissioners in their affidavit. The publication was made in four dailies namely The Hindu, Indian Express, Hindustan Times and The Statesman. There was no publication in the Times of India. Further out of the four newspapers in which publication was made only in two there were two insertions and in the remaining two there was only one insertion. This was con-trary to what the Commissioners have promised in their affidavit dated July 8, 1964. No doubt, other efforts were made for giv-ing publicity but these efforts were not sufficient to attract more than one offer. When the case came for confirmation on Decem-ber 24, 1964 there was an application by Babu Khan that the property was of much higher value and that fresh offers must be invited again with wider publicity. There is also the affidavit of the State Government dated August 29, 1963 in which the value of the property was shown as Rs. 13,40,000. Besides, on that very day, one Gopaldas Darak had come before the Court with higher offer showing his bona fides and earnestness by deposit-ing more than one lakh of rupees. He came with the complaint that there was not sufficient publicity as to attract people from the north and that as soon as he came to know he gave his offer. In these circumstances the learned single Jud2e was right in ex-pressing his reluctance to confirm the offer of Navalkha & Sons. He therefore decided to have an open bid as between the appellant and Darak in the court itself on that very day .. The complaint of Padam Chand Agarwal is that the second step taken by the Single Judge of holding an auction without giving wide publicity was not justified in law. Rule 273 of the Companies (Court) Rules provides that all sales shall be made by public auction or by inviting sealed tenders or in such manner as the Judge may direct. It appears that on April 17, 1964 at the instance of the Official Liquidator and at the instance of contributory the Court. had approved of the terms and conditions of sale which pravided for ca!ling of sealed tenders. On December 24, 1964 the learned Judge realised the inefficacy. of this course and decided to abandon the original procedure and put the properties to auc-tion. But having made up his mind to resort to auction the

(I J A.1.R. 1940 Mad. 42 ..

learned ] udge confined the auction to only two persons namely the previous tenderer and the fresh tenderer. The auction in question no doubt was conducted in public place but it was not public auction because it was not open to the general public but was confined to two named persons. Secondly it was not held after due publicity. It was held immediately after it was decided upon. It is, therefore, obvious that the sale in question was not public sale which implies sale after giving notice to the public wherein every member of the public is at liberty to participate. No doubt, the device resorted to considerably raised the previous bid yet it was not an adequate price having regard to the 'market value of the property to which reference has already been made. The denial of opportunity to purchase the property by persons who would have taken part in the auction bid but for want of notice is serious matter. In our opinion the learned Judge hav-ing decided on December 24, 1964 that the property should be put _to auction should have directed auction by public sale instead of confining it to two ·persons alone. Since there was want of publicity and there was lack of opportunity to the public to take part in the auction tile acceptance of the highest bid by the learned Judge was 11ot sound exercise of discretion. It is contended on behalf of the appellant that confirmation was discretionary with the court and the Division Bench ought not to have interfered with the discretion exercised by the Company Judge. It is true that the .discretion exercised by the Judge ought not to be inter-E fered with ubless ·the Judge has gone wrong on principle. As al-ready pointed out the learned Company Judge .having decided to put the property to auction went wrong in not holding the auction as public auction after due publicity and this has resulted in prejudice to the Company and the creditors in that the auction did not fetch adequate price. The prejudice was inherent in the method adopted. The petition of Padam Chand Agarwal also suggest that want of publicity had resulted in prejudice. In these circumstances the Company Judge ought not to have confirmed the bid of the appellant in the auction held on December 24, 1964. We are accordingly of opinion that tl\e Division Bench was right iri holding that the order of the Company Judge elated February 19, 1965. should be set aside and there should be fresh sale of the property either by calling sealed tenders or by auction in accordance with law. The tender will be called or the auction will take place with the minimum offer or with the starting bid of ten lakh rupees.

For these reasons we hold that the judgment of. the Division Bench of the Andhra Pradesh High Court dated September 24. 1965 is correct and these appeals must be dismissed with costs. One set of hearing fee ..

Appeals dismissed.

TATANAGAR FOUNDRY CO. LTD.

THEIR WORKMEN

October 27, 1969 [V. RAMASWAMI AND I. D. DUA, JJ.]

Industrial Dispute--Closure and lock out-Distinction between.

Industrial D1'.sputes Act (14 of 1941), s. 25FF,~-C/osure for reasons not beyond the control of the employer--Cotnpenro.tion pllyable to work-n1en.

The appellant informed the respondents, its workmen, of its decision to close its business. The reasons for the closure were : (i) financial condition of the appellant, (ii) non-availability of orders for supply of goods; and (iii) -non~cooperation of the respondents in certain matters. The dispute whether the closure was justified was referred to the Indus-trial Tribunal. The Tribunal held on the evidence : (I) that th<> appel· lant's undertaking was closed down completely and that there was final 'i"'d irrevocable termination of the business; (2) but that the closure was not bona fide and W3' lock out; ·and (3) that the closure was not due to unavoidable circumstances beyond the control of the appellant.In appeal to this Court,

HELD : ( 1) In the case of closure, the employer does not m""ely close down the place of business. but he closes the business finally and irrevocahly. The closure bas to be genuine bona,fide and effective, and not mere preten<'<'. The motive however, behind the closure is imma-tcrial. Jn the present case the circumstances showed that there had been in fact closure of the business, and therefore, the further findi11g of the Tribunal that it was lock-out should be set aside. [IO F-H; 11 B-D]

Management of Express Newspapers Ltd. v. Workers &: Staff employed wtder it and Ors. (1963) 3 S.C.R. 540, Tea District Labour AssociJltion v. Ex-Employees of Tea Districts Labour Assodation, (1960] 3 S.C.R. W7, 213, Andhra Prabha Ltd. v. Secretary, Madras Union of Journalists, [1967] 3 S.C.R. 901 and Kalinga Tubes Ltd. v. Their Workmen, A.I.R. 1969 S.C. 90, followed.

(2) As the closure was not due to circumstances beyond. the control of the appellant the respondents were eO.titled to compensation under the main clause of s. 25FFF of the Industrial Disputes Act, 1947. [12 C-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 697 of 1968.

Appeal by special leave from the award dated September 15, 1967 of the Industrial Tribunal, Bihar, Patna in reference No. 4 of 1967. •

B. Sen, B. P. Maheshwari and R. K. appellant.

Maheshwari, for· the

A. K. Nag and S. S. Khanduja, for the respondents.

The Judgment of the Court was delivered by

Ramaswami, J. This appeal is brought by certificate from the award of the Industrial Tribunal, Bihar dated September 15, 1967.

The appellant, Tatanagar Foundry Co., Ltd., is incorporated in the State of West Bengal and owns two manufacturin& establish-ments one located at Belur in the State of West Bengal and the other in J amshedpur in Bihar. The appellant carries on its busi-ness at Belur but has now closed its business at Jamshedpur with effect from November 20, 1966. At the time of the closure the appellant employed 136.0 workmen in its Jamshedpur establish-c ment where it was producing cast iron pipes, specials and heavy grey iron castings including ingots, moulds etc. On September 20, 1966 the appellant issued notice in respect of its business at Jamshedpur that due to shortage of orders and other economic reasons, about 120 workmen are being retrenched and the Com-missioner of Labour, Government of Bihar, Patna was duly noti-fied of the said retrenchment. On September 22, 1966 the Labour Superintendent, Government of Bihar, Jamshedpur, held conci-liation proceedings at which the appellant agreed to retain the services of 14 of the retrenched workmen and the union agreed to the retrenchment of the remaining workmen. On or about October 12, 1966 by notice of the same date, the appellant desired to retrench about 400 workmen, but at the intervention of the Superintendent of Labour the notice was temporarily with-drawn with view to discuss the matter with the union. Accord-ingly meeting was fixed on October 21, 1966 between the appel-lant and the union at Jamshedpur but the said meeting could not take place. On October 29, 1966 the appellant by notice laid off nearly 600 workmen for want of supplies of good quality raw material. In letter dated November 8, 1966 the Superinten-dent of Labour, Jamshedpur wrote that the General Secretary of the union had put up proposal for running the Jamshedpur es-tablishment of the appellant on cooperative basis and requested Mr. G. D. Agarwalla, Director of the appellant to place the matter before the Board of Directors of the appellant. At their meeting on November 17, 1966 the Board of Directors con-G sidered the letter dated November 8, 1966 of the Labour Super-intendent and resolved that if the State Government should be desirous of running the J amshedpur plant on cooperative basis Sri G. D. Agarwa!la was authorised to conduct negoiiations with the State Gbvernment of Bihar. But no further communication was received from the Government of Bihar indicating its willing-H ness or intention to run the J amshedpur branch of the apoellant. At its meeting on November 17, 1966 the Board of Directors of the appellant considered the situation in the J amshedpur plant and decided that it should be closed as early as possible and Mr. 6Sup.no-2

Agarwa!la was authorised to take necessary steps to effect the closure. Pursuant to the decision of the Board of Directurs Mr. Agarwalla issued notice dated November 19, 1966. By the said notice the workmen of the appellant were informed of its decision to close the business at Jamshedpur for good with effect from November 21, 1966 for the reasons explained in the notice. All the workmen were also informed that their services were no longer required after November 21, 1966 and the workers should consider themselves as discharged with effect from the said date. On February 3, 1967 \he Government of Bihar referred the following dispute to the Industrial Tribunal, Bihar for adjudic,-tion under s. IO(l)(d) of the Industrial Disputes Act, 1947 (14 of 1947):

"Whether the closure of the Tatanagar· Foundry Co. Ltd., Jamshedpur is justified? If not, to what relief and compensation the workmen are entitled?"

By its award dated September 15, 1967 the Industrial Tribunal held that it was satisfied that the closure of the Jamshedpur busi-ness of the appellant was not closure but Jock out in the dis-guise of closure and directed the re-instatement of the _workmen with full wages for the period they have been out of employ-ment.

In support of this appeal it was argued in the first place that the Industrial Tribunal had no jurisdiction to go into the ques.tion whether the closure of the Jamshedpur business was justified or not for financial or other reasons. The contention was that the Tribunal having found that the factory had in fact closed down it had no jurisdiction to _go into the question whether the closure could have been avoided. In our opinion the argument is well founded and must be accepted as correct. The distinction bet-ween lock out and closure has been explained by the decision -of this Court in the Managemellf of Express Newspapers Ltd. v. Workers & Staff employed under it and others('). It was pointed out in that case that in the case of closure the employer does no( merely close down the place of business but he closes the business itself finally and irrevocably. lockout on the other hand indi-cates the closure of the plac'! of business and not closure of the business itself. In the present case the totality of facts and cir-cumstances would .lead to the conclusion that the undertakin,? at Jamshedpur was closed down completely and was final and irrevocable termination of the business itself. But the Tribunal bas come to finding that the closure of the business was not bona fide but the closure wa5 done in order to victimise the work-men. As regards the financial position the Tribunal took the view that on the whole the financial condition of the company in 1966

(I) [1963] J S.C.R. 540.

has not worsened to such an extent as to reasonably constitute good ground for closing the business altogether. It might have been ground for reorganising the company or rationalising it by retrenchmemt or otherwise but it could not be ground for winding up the business altogether. In our opinion the finding of the Tribunal on this point is defective in law. It is now well established that in the case of closure the employer does not merely close down the place of business but he closes the busi-ness finally and irrevocably. 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. (see the decision of this Court in Tea District Labour Association v. Ex-Employees of Tea Districts Labour Association('). The motive behind the closure is im-c material and what is to be seen is whether it is an effective one. (see the decision of this Court .in Andhra Prabha Ltd. v. Secre-tary, Madras Union of !ournalists([2 ]) and Kalinga Tubes Ltd. v. Their Workmen('). Taking into account the entire set of cir-cumstances and facts in the present case we are of opinion that there has been in fact closure of the J amshedpur business and the finding of the Tribunal that there was lock out is defective in law and must be set aside.

The next question is whether the workmen were entitled to compensation under s. 25FFF of the Industrial Disputes Act which states :

"(l ) Where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, sub-ject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provi-sions of section 25F, as if the workman had been re-F trenched :

Provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three .months.

· Explanation.-An undertaking which is closed down by reason merely of financial difficulties (including financial losses) or accumulation of undisposed of stocks or tlie expiry of the period of the lease or the licence granted to it where the period of the lease or the licence expires on or after the first day of ApriL 1967 shall not be deemed to have been closed down on

(3)[1967] 3 S.C.R. 901.

(I) {1961] 3 S.C.R. 207, 213.

(l) .a.J.R. 1969 S.C. 90.

account of unavoidable circumstances beyond the con-trol of the employer within the meaning of the proviso to this sub-section."

The Tribunal has found that the appellant was not right in its contention that the closure was due to unavoidable circum-stances beyond its control. According to the appellant the main r~ns for the closure are : ( 1) financial condition of the appellant, (2) non-availability of orders for supply of goods; (3) non-cooperation from the workmen in standardisation of the working force and for reduction of the high percentage of rejec-tion. The Tribunal has gone into the oral and documentary evi-dence adduced by the parties and reached the i;onclusion that the closure of the business was not due to unavoidable circumstances beyond the control of the appellant. We see no reason for inter-fering with the finding of the Tribunal on this aspect of the case. The result, therefore, is that the workmen are entitled to compen-sation under the main clause of s. 25FFF of. the Industrial Dis-putes Act, 194 7.

We accordingly modify the award of the Industrial Tribunal dated September 15, 1967 and allow the appeal to the extent indicated. There will be no order as to costs.

Appeal partly allowed.