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20. Some observations of a Bench of the Supreme Court in the case of Payment of Wages Inspector v. Surajmal Mehta , appear to be educative on the effect of the special provisions made for the workmen under section 2(oo), Section 25FF and section 25FFF of the Act. While considering the contentions on the question on the question whether compensation payable under section 25FF of the Act can fall under the amended definition in section 2(vi)(d) of the Act and can be called wages, the Supreme Court has observed that the Industrial Disputes Act which was enacted in 1947, as a piece of legislation for settlement of industrial disputes had since then undergone frequent modifications. By Act 43 of 1953, a new Chapter V-A was incorporated containing provisions for compensation for lay-off and retrenchment. It also provided a definition of "retrenchment" in section 2(oo). In Hariprasad v. A. O. Divelkar [1956] 11 FJR 317; AIR 1957 SC 121, the Supreme Court held that retrenchment as defined in section 2(oo) and word "retrenchment" in section 25F of the Act meant discharge of surplus labour or staff by the employer for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action and did not include termination of services of all workmen on a bona fide closure of an undertaking or on a change of ownership of the management thereof. This decision was followed first by an Ordinance and then by Act 18 of 1957, incorporating in Act the present sections 25FF and 25FFF. Both this sections use the words "as if the workmen had been retrenched." The intention of the Legislature is, therefore, clear that it did not wish to place transfer and closure on the same footing as retrenchment under section 25F. This is apparent also from the fact that it left the definition of retrenchment in section 2(oo) untouched in spite of the decision in Hariprasad's case [1956-57] 11 FJR 317; AIR 1957 SC 121. The three sections 25F, 25FF and 25FFF also show that while under section 25F no retrenchment can made until the conditions therein set out are carried out, the other two sections do not lay down such conditions. All the three sections, however, involve termination of service whether it results in the consequence of retrenchment or transfer or closure, and notice and compensation in both sections 25FF and 25FFF have been provided for "in accordance with the provisions of section 25F."

23. In Ramchandra's case [1982] Lab IC 27, a Bench of the Bombay High Court has found that closure on the ground of non-availability of sugarcane which alone was the raw material for the industrial activity of the undertaking was a closure due to unavoidable circumstances beyond the control of the employer. In this judgment, however, it is said that whether in a given case, the circumstances were unavoidable, which led to the closure of the undertaking and whether these unavoidable circumstances were beyond the control of the employer, has to be determined on the facts and circumstances of that case. Such provisions of the Industrial Disputes Act which are put in Chapter V-A such as sections 25F, 25FF and 25FFF of the Act are special and they have been given effect to over any other law. It is so stated in section 25J :

26. The statutory consequence or the deemed notice of discharge upon the winding-up order has been understood as unavoidable circumstances beyond the control of the employer by some courts, but they have all taken the precaution to state that when the winding up was fraudulent or collusive, such inference may not be drawn. A question may legitimately arise when the company has sufficient assets, it has the capacity to discharged all the debts, yet, it has allowed the debts to accumulate and created a compulsion for the creditor to sue and if the ordinary civil action is not found adequate, to take recourse to a proceeding to wind up company, is it not a case in which the company itself is responsible for the adverse conditions in trade and has not given sufficient care to the business and facilitated the winding up and will it not be legitimate to infer on such facts that the company/employer itself created conditions for winding up and as a consequence of the winding up, or the closure of the company. The closure of a company as a consequence of the winding up if accepted as an unavoidable circumstance beyond the control of the employer for the purpose of giving effect to the rule in section 25FFF of the Act, which has been introduced for granting compensation to the employees who are terminated as a consequence of the closure of the undertaking in such a situation should not be accepted as an unavoidable circumstance. We cannot ignore the fact that the petitions for winding-up in most cases are based upon the failure of the employer/owners/management of the company to discharge their debts in due course of business and almost in all cases of this kind as observed in Shree Madhav Mills' case , by a learned single judge that such failures necessarily result in winding up orders. We are in agreement with what is said in Shree Madhav Mills judgment, the winding up orders in such cases must be considered as a result of financial difficulties of the companies and/or inability of the companies to discharge all their debts in due course of business. In most of the cases it would not be correct to say that a finding that because the court has intervened and passed winding up orders the undertaking is closed, the closure of the undertaking is due to or on account of unavoidable circumstances beyond the control of the employers. On the contrary, in these circumstances, the appropriate finding would be that the financial difficulties were in fact the result of the company's usual trading activities and were not on account of unavoidable circumstances beyond the control of the companies. This interpretation in our view will uphold the primacy of section 25FFF of the Act over the law that only envisaged notice of closure to the employees under section 445(3) of the Companies Act. This view will also be in consonance with the observations of the Supreme Court in the case of Payment of Wages Inspector v. Surajmal Mehta [1969] 35 FJR 232, wherein the Supreme Court has said that compensation falling under section 25FFF read with section 25F of the Act would be the wages within the meaning of section 2(vi)(d) of the Industrial Disputes Act. However, the equity in such a case will depend not on a mechanical application of the rule of thumb, if the company has been wound up and as a consequence thereof, there is a closure notice and, therefore, it is a closure on account of unavoidable circumstances beyond the control of the employer. The court in such a situation cannot act so mechanically as to forget altogether how and in what manner the employer acted in that the undertaking failed to function and collapsed in liquidation. We have until now proceeded on the assumption that the undertaking was closed as a consequence of the winding up and the retrenchment has been effected only as a consequence of the closure. Introduction of section 25O of the Act in Chapter V-A of the Industrial Disputes Act has brought a rule that before the closure, the appropriate Government or a Tribunal appointed by the Government would go into the genuineness of the cause. In a case of winding up of a company the enquiry as envisaged under section 25O of the Act may be formal in nature. Yet, there is some control and there is a mechanism to note as to why the employer has intended to close down the undertaking. Until, however, the formality under section 25O of the Act is completed, there is no closure in the eye of law. Before the Amendment Act, 45, of 1982, which introduced section 25O of the Act in the Chapter of special welfare provisions for the workmen, section 25FF of the Act alone took care of the interests of the workmen which were affected by the closure of their undertaking by their employer. The reason by the unavoidable circumstances beyond the control of the employer has got the effect of limiting the compensation payable to the employee to the average pay for three months, but it does not exclude altogether the application of section 25F of the Act which says :