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(e) the burden to prove that the closure of the undertaking satisfied the above tests, was on the employer,

(f) closure due to unavoidable circumstances, which were not relatable to the functioning of the undertaking, would not attract the proviso to Section 25 FFF(1),

(g) the Labour Court had left the above issue unexamined and unanswered,

(h) no witness had been produced, by the respondent, to indicate that the closure of its Badarpur factory was owing to unavoidable circumstances beyond its control; neither did of the MWs depose to the said effect,

however, as the Badarpur factory of the respondent would not fall into any of the said categories, reference is not required to be made thereto. Similarly, sub-section (2) of Section 25 FFA also excepts the applicability of sub-section (1), in cases where temporary closure is necessitated owing to unavoidable and unforeseeable exigencies.

30. Section 25 FFF deals with compensation, payable to workmen, in the case of closure of undertakings. Sub-section (1), thereof, stipulates that, where an undertaking is closed down for any reason whatsoever, every workman, who has been in continuous service of one year, or more, in the said undertaking, immediately preceding the closure, shall be entitled to (i) notice and (ii) compensation, in accordance with the provisions of Section 25 F, as if he had been retrenched. The proviso to the said sub-section, however, excepts the applicability of the sub-section to cases where the closure of the undertaking is attributable to "unavoidable circumstances beyond the control of the employer". In such cases, the proviso ordains that the compensation, payable to the workmen, would not exceed his average pay for 3 months. The explanation, following the said proviso, deems closure of an undertaking, merely for the following reasons, not to amount to closure "on account of unavoidable circumstances beyond the control of the employer":

21. The effect of the impugned section along with the proviso is to classify the undertakings into two classes viz. (1) those which are closed down on account of unavoidable circumstances beyond the control of the employer, and (2) the remaining. When the closure of an undertaking is due to circumstances beyond the control of the employer, the maximum limit of compensation is average pay for three months, irrespective of the length of service of the workmen; in the residuary class, the liability is unrestricted. The explanation is in substance, a definition clause which sets out what shall not be deemed to be closures on account of circumstances beyond the control of the employer. By this explanation, employers who had to close down their industrial undertakings merely because of financial difficulties including financial losses or accumulation of indisposed of stocks are excluded from the benefit of the proviso to Section 25-FFF(1). The proviso restricts the liability of employers who are compelled to close down their undertakings on account of unavoidable circumstances beyond their control, but in the view of the Parliament, in that category are not to be included employers compelled to close down their undertakings merely because of financial difficulties or accumulation of undisposed of stocks. Closure of an undertaking attributable merely to financial difficulties or accumulation of undisposed of stocks, is by the explanation, excluded from the benefit of restricted liability; but coupled with other circumstances, financial difficulties or accumulation of undisposed of stocks may justify the view that the closure is due to unavoidable circumstances beyond the control of the employer, and attract the application of the proviso notwithstanding the explanation.

58. Adverting, now, to this aspect of the matter, i.e. whether the closure of the Badarpur factory was "on account of unavoidable circumstances beyond the control of the employer", it is clear that failure to decide the said issue would result in an inchoate determination of the rights of the workmen, to compensation, consequent to closure of the Badarpur factory. While it is obvious that the said closure cannot be treated as not being genuine or real, or as being a sham, the petitioners-workmen would, nevertheless, be entitled to compensation, under Section 25 FFF(1) of the ID Act. In case the closure is attributable to unavoidable circumstances beyond the control of the respondent, only limited compensation, as contemplated by the proviso to Section 25 FFF(1) of the ID Act would be available to the petitioners. On the other hand, if the closure is not attributable merely to unavoidable circumstances beyond the control of the respondent, the petitioners-workmen would be entitled to additional compensation, in accordance with sub-section (1) of Section 25 FFF of the ID Act.