Patna High Court
Management Of Rodio Foundation ... vs State Of Bihar And Ors. on 15 April, 1969
Equivalent citations: AIR1970PAT295, AIR 1970 PATNA 295, 1970 LAB. I. C. 1119
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Untwalia, J.
1. These three writ applications, filed by the Management of the Rodio Foundation Engineering Limited and Hazarat and Company, Tenughat Dam Site, arising out of two reference cases under the Industrial Disputes Act, 1947 (Central Act 14 of 1947--hereinafter called the Act), have been heard together and this judgment will dispose them of.
2. The petitioner's case in all these three cases is that the petitioner company was formed in India out of collaboration of the Eodio Foundation Engineering Limited of Switzerland and Hazarat and Company of Bombay. The company formed on collaboration is a firm of contractors for special foundation under various Government schemes. It obtained two contracts from the Government of Bihar in connection with the Bihar Government's Tenu Ghat Dam Project one in 1966 for concrete diaphragm, and the other in 1967 for drilling and grouting of foundation. The company started work at the site in 1967 and its establishment at the project site was established some time in or about April, 1967.
In the 7th and 8th paragraphs of the writ applications in C. W. J. C. 123 and 124 of 1969, both filed on the 31st January, 1969, the statement is that the work under the company's contract relating to concrete diaphragm was almost complete and the services of the bulk of the daily rated temporary workmen, who were employed in connection with such operations, had been terminated when such workmen became surplus to the company's requirements. But, in so far as the company's contract relating to drilling and grouting of foundation of the Tenughat Dam Project was concerned, its operations were stated to be nearing completion on the date of the filing of the two applications. The company entered into an agreement with the Bihar Rajya Nadighati Evam Sinchai Karamchari Sangh (hereinafter called the Sangh) on the 30th August, 1967. A copy of this agreement is An-nexure 'A' to the counter affidavit filed on behalf of the Sangh.
3. The petitioner's case further is that while the agreement aforesaid was in force, in accordance with the provisions of Section 18 of the Act, the labourers again raised a dispute and presented a charter of demands to the petitioner company, wherein various claims were made, including a claim for bonus for the years 1966-67 and 1967-63. The Government of Bihar made a'reference of the industrial dispute between the petitioner company and the Sangh, which is Respondent No. 3 in all the three applications, under Section 10(1) (d) of the Act, in respect of the demands made by the labourers in their charter of demands submitted to the management, including the one regarding bonus. This reference is dated the 9th of July, 1963, on the basis of which Reference Case No. 44 of 1968 was started before the Industrial Tribunal, Bihar, at Patna. A copy of this reference is Annexure '2' to the writ application in C. W. J. C. 123 of 1969. The petitioner filed its written statement in this reference case on the 15th October, 1968, a copy of which is Annexure '4'."
On the 15th October, 1968, the Sangh filed an application before the Industrial Tribunal for interim relief of six month's wages to the workmen concerned and for directing the management not to shift any machinery and plant from the work site during thie pendency of the reference. The company filed its objection on the 26th October, 1968. Copies of the application of the Sangh and the objection of the company are, respectively, Annexures '4' and '4/1' in C. W. J. C. No. 3 of 1969. On the 7th November, 1968 the Tribunal made an order, a copy of which is Annexure '5' in C. W. J. C. 3 of 1969, directing the management to deposit two months wages of each workman with the Tribunal to be paid to the workmen, if they succeeded in respect of their claim for bonus. The company, in C. W. J. C. 3 of 1969, challenges the legality and propriety of this order.
4. Now I may state certain facts with reference to what happened on or about the 15th of May, 1968, at the work site. According to the case of the petitioner company in C. W. J. C. 124 of 1969, the workers created various troubles in the work of the company, so much so that, after working until the noon of the 15th May, 1968, they suddenly stopped work without giving any notice arid resorted to violence, which necessitated calling for police action. According to the case of the company, it had earlier served notices of termination of services of various workmen because of the completion of a large portion of the work. The extended notice of termination of service was to take effect from the 19th of May, 1968, but, before that the workers themselves stopped work on the 15th May, 1968, as stated in paragraph 15 of the writ application in C. W. J. C. 124 of 1969. According to the case of the Sangh in the counter affidavit filed in that case, while the charter of demands of the workmen was still under conciliation, the company, all of a sudden, closed its work on site and refused to employ the workmen, even without competing" the work on the 15th of May, 1968, to put pressure on the workmen to give up their demands. The case of the workmen is that this was a 'lock out' within the meaning of the Act. They had made a grievance of it to the Government in their letter dated the 26th of June, 1968, a copy of which is Annexure '4/A' in C. W. J. C. 124 of 1969.
Upon this the State Government made another reference under Section 10 of the Act on the 24th of September,' 1968, a copy of which is Annexure '5', and this gave rise to reference case No. 67 of 1968. A copy of the letter of the Sangh dated the 26th June, 1968, was forwarded to the management by the Government under its covering letter dated the 31st October, 1968, a copy of which is Annexure '4'. In reference case No. 67 of 1968 the Sangh filed its written statement on behalf of the workmen on the 22nd November, 1968, and the company filed its written statement on the 25th November, 1968. In both the reference cases, the company filed applications on the 15th January, 1969, asking the Tribunal to decide the preliminary questions raised in its written statement. In both the cases again on the 16th January, 1969, the company filed additional written statements taking, for the first time, in both the cases two more points:--
(i) That the company's work is not an industry within the meaning of the Act, and,
(ii) That the persons who were doing the work at the site were not employed by the company within the meaning of the term, 'workman' as denned in the Act.
The Tribunal, by its separate orders passed on the 23rd January, 1969, in both the cases, has decided certain preliminary points against the petitioner company and has postponed the decision of certain points till the final adjudication. The company has filed C. W. J. C. 123 of 1969 against the order of the Tribunal dated the 23rd January, 1969, in Reference Case No. 44 of 1968, and C. W. J. C. 124 of 1969, against its order of the same date in Reference Case No. 67 of 1968.
5. I now proceed to decide the three cases one by one.
Civil Writ Jurisdiction Case No. 3 of 1969
6. Term No. 2 of the agreement entered into between the company and the sangh, a copy of which is Annexure 'A' clearly shows that the former had agreed to pay bonus at the rate of four per cent of the normal earnings of the workmen. According to the case of the petitioner company, it has paid bonus to many workmen, rather majority of them, at that rate, in accordance with the said agreement. Only a few had not turned up to receive the bonus at that rate, although the company has always been ready and willing and is still ready and willing to pay bonus at that rate. This fact is not denied by the Sangh, although it says that the agreement was not binding on the workmen concerned. Be that as it may for the purpose of giving interim relief to the workmen, it was necessary to see as to whether they were entitled to any interim relief as asked for by them. As I have stated above with reference to their application filed on the 15th October, 1968 they had demanded interim relief in a different form. The Tribunal did not consider it fit and proper to give them any interim relief by way of making any interim award. It merely directed the management to deposit two months wages to be paid to the workmen if they succeeded in the case. Such a direction was in the nature of asking the management to give security in cash in order to enable the workmen to get the money if they ultimately succeeded on the question of their demand of bonus. Although the powers of the industrial tribunals are very wide at the time of making the award or interim awards, no case was brought to our notice, as obviously it could not be that the Tribunal has got the power to make an interim order of the kind as it made in this case.
Firstly, on the facts stated by the management, no case lor any interim relief lor payment of bonus was made out. Even assuming that ultimately, when the reference is decided and the question of bonus is adjudicated, the workmen are found entitled to the amount of bonus as claimed by them, there was no justification for asking, the management to deposit two month's wages during the pendency of the reference to enable the workmen to realise their claim of bonus as may be adjudicated by Tribunal finally. In my opinion, therefore, the impugned order of the Tribunal dated the 7th of November, 1968, a copy of which is Annexure '5' in this writ application, must be quashed by grant of a writ of certorari, as being without jurisdiction and illegal on the face of it. I may state that the management asked the Tribunal to review or recall this order by filing an application, which was rejected by its order dated the 9th December, 1968, a copy of which is Annexure '8' in this writ case. I do not think it necessary to expressly quash this order, as it has lost its force when I have quashed the order dated the 7th November, 1968.
Civil Writ Jurisdiction Case No. 123 of 1969.
7. A copy of the impugned order dated the 23rd January, 1969, in this case is Annexure '3'. In the written statement (Annexure '4') filed in Reference Case No. 44 of 1968, on the 15th October, 1968, it was stated in the 5th paragraph:--
"For the successlul execution of the contracts the Company set up a site office at Tenughat employed workmen on daily rates and temporary basis having regard to the nature of its operations."
In the sixth paragraph the statement was that the work of the company in so far as it related to concrete diaphragm was almost complete and the services of the bulk of the daily rated temporary workmen, who had been employed in connection with such operations, had been terminated as and when they became surplus to the company's requirements. So far as the other work of drilling and grouting were concerned, its operations had been completed in part and were likely to be completed in full in a few months. In the application filed on the 15th of January, 1969, a copy of which is Annexure '1' the company wanted the Tribunal to decide the preliminary objections as raised in paragraphs 3 and 6 of the written statement filed earlier. But, in the application filed on the 16th January, 1969, a copy of which is Annexure '1/A', it took, as I have already said, two new stands; "(i) The Company being a mere contractor of the Government of Bihar and being engaged in works of construction of the projects of the Government of Bihar, is not an Industry, as defined in Section 2(j) of the Industrial Disputes Act," and "(ii) That the daily rated (workers) working in the Project under the management of the aforesaid Company are not 'employed' under the Company and as such are not 'workmen' as defined in the Industrial Disputes Act."
Other questions were also raised in this application dated the 16th January, 1969, by way of preliminary objections. The Tribunal has held by its impugned order that the petitioner's undertaking is covered by the definition of "industry" as given under the Act and that the workmen concerned are employed by the company and are 'workmen' within the meaning of the Act. It has, however, refused to decide as preliminary issues the questions of wage structure, bonus and the work being almost complete there could be no dispute for the future in the industry, the Tribunal being of the view that all these questions will be decided at the final adjudication.
8. In my opinion, the Tribunal has decided the two questions against the petitioners rightly and has also rightly refused to decide the three questions by way of preliminary objections or issues, as they were not so. Deciding those three questions would mean deciding the reference itself more or less and the reference could not be held to be invalid by deciding those questions on merits. If, on final adjudication, it is found that there is substance in the case of the company in regard to any of them, the workmen may not get any relief in the award in respect of them, but, if, on final adjudication, it is found that the workmen's case is sustainable and correct, they may get relief by the award of the Tribunal.
9. The word 'industry' is defined In Clause (j) of Section 2 of the Act to mean-
"any business, trade, undertaking, manufacture or calling of employers and includes any calling service, employment, handicraft, or industrial occupation or avocation of workmen."
On a plain reading of the definition, it is manifest that the petitioner's establishment, work or undertaking is an 'industry' within, the meaning of the Act. The whole of the argument in this regard advanced by Mr. B. C. Ghose, learned Counsel for the petitioner, is that the undertaking to build the Tenughat Dam is that of the Government of Bihar or the State of Bihar. The petitioner company has merely taken contract for doing some work in that project. There cannot be an 'industry' within an 'industry'. Hence the 'industry' being one of construction of Tenughat Dam, a firm of contractors doing any work therein cannot be an 'industry' within the meaning of the Act. The argument, in my opinion, is too obviously wrong to merit any detailed discussion. The Government of Bihar has undertaken the construction of Tenughat Dam. It may be an 'industry' carried on by the State Government. Any person or firm or a company associated with the work of Tenughat Dam Project as an independent contractor or doing any business, trade, or the like, in connection with it, will surely also be an independent 'industry' within the meaning of the Act.
I may illustrate my points by giving two examples. The Bihar Government has undertaken to construct the Tenughat Dam. A company, opening a factory for manufacture of cement to supply it to the Tenughat Dam under the contracts obtained from the Bihar Govt. for its supply, undoubtedly will be doing the work of manufacture or business for the supply of cement to the Tenughat Dam, although the whole of the product under the terms of the contract may be meant for the Dam. A particular portion of the work of construction of the Dam itself, as in the instant case, is entrusted to a contractor which engages several workers for completing the work, who are workers engaged by the firm or the contractor, and not by the Government. In such a situation, although the construction of the Tenughat Dam as a unit may be an industry carried on by the State Government, its different operations, carried on by independent contractors, firm of manufacturers or businessmen will surely also be different industries within the meaning of the Act and the labourers employed by such different industries will be workmen within the meaning of the Act,
10. In my opinion, the second question raised by the company in its petition filed on the 16th January, 1969, is against its express stand taken in its first written statement, portions of which I have extracted above. Its clear case was that it had employed workmen on daily rates and on temporary basis. The mere fact that those workers have been paid on daily rates or have been employed on temporary basis will not make them independent labour contractors, as was so in the case of Chintaman Rao v. State of Madhya Pradesh, AIR 1958 SC 388, which has rightly been distinguished by the Industrial Tribunal in its impugned order. Even agarias employed in the manufacture of salt, in operations which were of seasonal character, by parcelling out the areas into plots, were held to be workmen by the Industrial Tribunal in the case of D. C. Works Ltd. v. State of Saurashtra, AIR 1957 SC 264, which was decided by the Supreme Court. While upholding the, view of the Tribunal, the Supreme Court! further said that "the question whether the relationship between the parties is one as between employer and employee or between master and servant is a pure question of fact." The important test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work as stated by Bhagwati, J. in the decision aforesaid of the Supreme Court (in paragraph 14 of the judgment). On the facts stated by the petitioner company, I find it not only difficult, but almost impossible, to hold that the test as laid down by the Supreme Court was not satisfied and that there was no relationship of master and servant between the petitioner company and its workmen.
Subba Rao, J. (as he then was) !n the case of Chintaman Rao, AIR 1958 SC 388 pointed out (at p. 391):--
"The concept of employment involves three ingredients: (1) employer, (2) employee, and (3) the contract of employment. The employer is one who employs, i.e., one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee whereunder the employee agrees to serve the employer subject to his control and supervision."
Applying these tests, it was held in that case in respect of a Sattedar manufacturing Bin that he was not working under the contract of employment, but he was an independent contractor. On the facts of the instant case. I fail to understand, how a view is possible in favour of the petitioner company that the labourers employed by it, even though they were paid on daily rate basis, were not employed by it under a contract of employment and that there was no relationship of master and servant between them. Although the question posed by the Tribunal that if they were not the employees of the petitioner company, whose employees they were, may not have been quite accurately posed on the basis of the various written statements or applications filed by the petitioner company, on the facts stated, there is nothing to suggest that the labourers were employed by the petitioner company on any contract basis in the sense of employing them as independent contractors supplying labour only and not as persons employed by the company to work under its control and supervision. In my opinion, the Tribunal has taken a correct view in this regard and this is apart from the fact, as said by the Supreme Court, that it is a pure question of fact.
11. In the result, Civil writ jurisdiction Case No. 123 of 1969 fails and is dismissed.
Civil Writ Jurisdiction Case No. 124 of 1969.
12. This case arises out of Reference Case No. 67 of 1968. The impugned order dated the 23rd January, 1969, is Annexure '7', which shows that the preliminary objections raised before the Tribunal were;
(1) That the petitioner's work is not an industry.
(2) That the'labourers are not employed by the petitioner company, so as to make them 'workmen' within the meaning of the Act.
(3) That there was no dispute raised by the Sangh with the management and hence the State Government had no jurisdiction to refer the alleged dispute of "lock-out" under Section 10 of the Act.
(4) That, as a matter of fact, there was no lock-out and hence the reference was incompetent.
13. The first two points have been held by the Tribunal against the petitioner company and for the reasons already stated in Civil Writ Jurisdiction Case No. 123 of 1969, I uphold the decision of the Tribunal on those points.
14. In regard to the third point, the decision of the Tribunal Is that it is not necessary in law that in every case there must be a demand to the management and refusal of it in order to raise an industrial dispute. What is necessary is that a dispute or difference must first arise in respect of the matters referred to in the Act between the employer and the employees and then the Government gets jurisdiction to make a reference. As respects the fourth objection, the view of the Tribunal is that it has to be determined after evidence of both the parties have been taken and then only this question can be decided and it cannot be decided as a preliminary issue.
15. Learned Counsel for the petitioner strenuously pressed the third point and submitted, on the authority of the decisions in the cases of the Members of Sasamusa Workers Union v. State of Bihar, AIR 1952 Pat 210 and Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal of Gujarat, AIR 1968 SC 529, that In absence of a demand and a refusal it could not be said that there was In existence any dispute or there was an apprehension of any dispute in regard to the alleged lock-out. In my opinion, there is no force in the argument put forward on behalf of the petitioner company. A charter of demands had been made by the workmen in December, 1967. A conciliation proceeding was going on in regard to them. During the pendency of the conciliation proceeding, admittedly, something happened on or about the 15th of May, 1968, resulting in the stoppage of the work. According to the case of the management, the workers stopped the work, while, according to the case of the latter, the place of employment was closed and there was suspension of the work followed by the refusal by the employer to continue to employ the workmen. The fact that the work was not carried on in the establishment of the petitioner company on the 15th May, 1968, is not in dispute. Naturally then a dispute arose as to what was, the reason for the stoppage of the work, and the reason of that stoppage of the work was an industrial dispute within the meaning of the Act, as defined in Clause (k) of Section 2. It means any dispute or difference between the employer and the workmen. The dispute or difference was, as I have already said, that the workmen stopped the work, according to the employer, while according to the former, they were not allowed to work due to the closing of the place of employment and the suspension of the work. On the facts and in the circumstances of this case, therefore, no specific demand by the workmen was necessary to bring out the existence of an industrial dispute, in the matter of the alleged lock-out.
The workers brought this fact to the notice of the Government in the letter of the Sangh dated the 26th of June, 1968 (Annexure '4/A'). The president of the Sangh wrote to the secretary to the Government of Bihar in the Department of Labour and Employment, that "the management has closed the site since 15-5-1968 unilaterally and the workers are not being allowed, to work, neither they are being paid their wages, over time wages and other dues by the Company." Further grivances were also ventilated and ultimately, a request was made "to take legal action against the management for nonpayment of the dues of the workers and also prohibit the management not to, shift any machines or tools from the work site as well as not to remove any worker from service." Whatever may be the nature of the relief which the workers wanted from the Government exercise of the powers under Section 10 of the Act does not depend upon the relief asked for by the workmen. The facts stated in Annexure '4/A' clearly show that according to the workmen there was a lock-out within the meaning of Clause (1) of Section 2 of the Act. That being so, the Government was competent to make a reference under Section 10 of the Act in the form as it did. The question referred was, as would appear from Annexure '5':
"Whether the alleged lock-out by the management from the 15th May, 1968, was proper and justified? If not, to what relief and compensation the workmen are entitled."
16. Section 23 of the Act says that no employer, of workmen in any industrial establishment shall declare a lock-out during the pendency of a conciliation proceeding or under certain other conditions enumerated therein. If, therefore, the workmen concerned approached the Government for the redress of their grievances because of the alleged lock-out, by bringing the facts to the notice of the Government, it is difficult to accept the contention put forward on behalf of the petitioner that there was no dispute raised before the management in that regard. The dispute obviously was there which resulted in the stoppage of the work. I may also add that I am inclined to think that the sine qua non of the exercise of the power under Section 10 of the Act is that in the opinion of the appropriate Government any industrial dispute must exist or there must be an apprehension in regard to that. In all cases it is not necessary that the dispute must be preceded by a demand and a refusal in express terms by the parties concerned. If on the evidence adduced before the Tribunal it is found that the industrial dispute did not exist or was not apprehended, the reference may be held to be incompetent. But, at this stage, to say that, merely because in express terms no such dispute was raised before the management by the workmen, there was in fact no dispute and hence the reference is incompetent, will not be correct. The question of the existence of a dispute or an apprehended one has got to be decided with reference to the facts of each case. If merely the workmen make a demand before the Government that they are entitled to get such and such wages or such and such amount of bonus, without making this demand before the management, it can be legitimately said, if I may say so with respect, as was said by a Bench of this Court in the Case of the Member of the Sasamusa Workers Union, AIR 1952 Pat 210, that no dispute had actually cropped up, because no demand was made before the management, there was no refusal of the demand and hence there was no dispute.
It may also well be that if a different kind of demand is made before the management and the reference is of a different kind, then also the reference is incompetent, as was the case before the Supreme Court in AIR 1968 SC 529. The claim put forward before the management was for payment of retrenchment compensation and not for reinstatement, but the demand put forward before the Government was for a reinstatement also. In that situation, it has been said by Bhargava, J.:
"An industrial dispute, as denned, must be a dispute between employers and employers, employers and workmen, and workmen and workmen. A mere demand to a Government, without a dispute being raised by the workmen with their employer, cannot become an industrial dispute."
In the facts of the instant case, the demand, as the case of the workmen is, put forward before the management on the 15th May, 1968, was to allow them to work. The management would not allow them to work. The resultant of this dispute was an industrial dispute as to the alleged lock-out. No further demand in respect of that dispute was necessary and when a grievance was made before the State Government by the workmen concerned, the Government was competent to make a reference under Section 10 of the Act for adjudication of the dispute.
17. In my opinion, the reference as made on the 24th of September, 1968, necessarily involves determination of three questions:
(i) Whether there was a lock-out by the management on the 15th of May, 1968?
(ii) If so, whether it was proper and justified?
(iii) If not, to what relief and compensation the workmen are entitled? The use of the word "alleged" before the words "lockout" by necessary implication brings about determination of the question as to whether in fact there was a lockout or not within the meaning of Clause (1) of Section 2 of the Act. The Tribunal has rightly said, while deciding the fourth objection raised on behalf of the management, that it will decide this question after taking evidence and not as a preliminary issue, If the Tribunal comes to the conclusion that, in fact there was no lockout, neither of the other two questions will fall for decision. If, on the other hand, this question is decided in favour of the workmen, the second question will have to be decided and, thereafter, if necessary, the third question.
18. While, pressing the fourth point of the preliminary objection in this Court, Mr. Ghose strenuously argued that, according to the case of the management, it was a case of closure of the business or the undertaking and not a case of lockout. The Tribunal has failed to decide this preliminary question, which was necessary to be decided before the reference could proceed further. I have no hesitation in rejecting this point on the simple ground that the case of closure was not pleaded, as I shall presently show, in any of the written statements filed by the management nor was it raised before the Tribunal, nor has it been pleaded specifically in the writ applications filed in this Court. I have referred to some of the statements in the written statement as also the statements made in this Court to show that, according to the case of the management, the entire work had not finished, a major portion of it was completed and a portion of the work was going on and was likely to be completed, as stated even in the writ applications filed on the 31st January, 1969, in this Court. That being so, I fail to understand, how it is possible to entertain the point raised on behalf of the petitioner that the undertaking of the petitioner was closed down within the meaning of Section 25-FFF. of the Act. The establishment was there, the work was going on and a portion of the work had remained incompleted. Therefore, the expression used on behalf of the workmen that there was closure of the site or the Dam site must mean. If the facts stated are correct, closing of the place of employment and not the closing of the business or the undertaking. As in the other case, in this case also, in the application filed on the 15th January, 1969, a copy of which is Annexure '1', the company asked the Tribunal to decide the preliminary objections raised in paragraphs 1, 3, 4, 5, 6 and 18 of the written statement filed on the 25th November, 1968. Undoubtedly, the case of the management was that there was no lock-out but that is very much different from saying that it was a case of closure. It may be a case of lock-out, it may not be a case of lock-out, that is a matter which has still to be decided by the Tribunal, but it is impossible to throw the reference on the ground that it was a case of closure, not pleaded by the company, in my opinion, at any stage. Here I shall refer to paragraph 3(x) of the supplementary objection filed on the 16th January, 1969 (Annexure '1/A') to which our attention was drawn by learned Counsel for the petitioner. The said paragraph reads as follows:--
"That closure of work for want of contract by a contractor could not be lockout."
I am definitely of the view that the expression "closure of work" used in this paragraph means closing the particular item of the work because there was no further work to be proceeded with. The pleading, therefore, even in this paragraph of the management was that it was not a case of lock-out. Nowhere it pleaded, as I have said above, that it was a closure of the business or the undertaking, rather the facts stated contradict this stand in express terms.
19. Learned Counsel for the petitioner, in support of his case of closure, placed reliance upon two decisions of the Supreme Court in the cases of the Management of Express Newspapers (Private) Ltd. v. Workers, AIR 1963 SC 569 and Kalinga Tubes Ltd. v. Their Workmen, (1968) 34 FJR 393 = (AIR 1969 SC 90), It may well be, as pointed out by the Supreme Court, that if a case of closure Is pleaded, this has got to be decided as a jurisdictional fact, because the jurisdiction of the Tribunal to adjudicate the points of reference will depend upon the decision of this jurisdictional fact. On the finding the Industrial Tribunal may record on the preliminary issue, it may decide whether it has jurisdiction to deal with the merits of the dispute or not. But, if: such a case has not been made out by the management, the Tribunal is under no obligation to decide this as a preliminary issue. In one sense, even the decision of the question as to whether there was. a lockout or not may be called to be a decision on the preliminary issue, but, on the facts of the instant case, as I have said above, the Tribunal has rightly deferred the decision of this issue until evidence is adduced.
In the case of Kalinga Tubes Ltd., (1968) 34 FJR 393 = (AIR 1969 SC 90) what has been laid down is as to what is meant by "closure." Grover, J. has pointed out at page 400 (of FJR) = (at p. 95 of AIR) that it is not correct to say that there can be a closure of an undertaking only when there are financial difficulties and the undertaking becomes a losing concern. But what the cases have laid down is that in a case of closure the employer does not merely close down the place of business, but it closes the business itself, finally and irrevokably and the closure is genuine and bona fide in the sense that it is a closure in fact and not a mere pretence of closure. The facts stated by the petitioner company, both before the Tribunal as also in this Court, instead of lending any support to the argument put forward on behalf of the petitioner in regard to the point of closure, are rather, in my opinion, very much against it.
20. In the result, Civil Writ Jurisdiction Case No. 124 of 1969 also fails and is dismissed.
21. I will make no order as to cost in Civil Writ Jurisdiction Case No. 3 of 1969. But the Sangh, Respondent No. 3, will have its cost in Civil Writ Jurisdiction Cases 123 and 124 of 1969. One consolidated hearing fee of rupees one hundred only will be awarded in both the cases.
Kanhaiyaji, J.
22. I agree.