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We, therefore, turn to consider the relevant Sections in Chapter V-B. Section 25-K of the Act lays down that "provisions of this Chapter shall apply to an industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than [one] hundred workmen were employed on an average per working day for the preceding twelve months". It is not in dispute between the parties as noted earlier that in 1993 when the impugned termination notices were issued to the writ petitioners, they were working in Rihand Nagar project wherein more than hundred workmen were employed. Therefore, the moot question which would arise is whether the Respondent company was an 'industrial establishment 'so as to be covered by the sweep of Chapter V-B. For answering this question the definition in Section 25-L becomes relevant. It lays down that "for the purpose of this Chapter V-B,-(a) 'industrial establishment' means-(i) a factory as defined in clause (m) of Section 2 of the Factories Act, 1948 (63 of 1948)". We are not concerned with other sub-clauses (ii) and (iii) Section 25-L. As far as application of Chapter V-B is concerned, the real question that arises is whether the Respondent company can be said to be an 'industrial establishment' being a 'factory' within the meaning of Section 2(m) of the Factories Act when it engaged itself in laying railway track over an area of 54 KMs in the Rihand Nagar Project. The next relevant provision for our consideration is Section 25-N in Chapter V-B which requires to be extracted in full as its applicability or otherwise will have a direct impact on the final result of these proceedings :

As noted earlier, the Division Bench of the High Court in the impugned judgment has taken the view that Section 25-N is not applicable on twin reasons. Firstly, it observed, as noted earlier, that if the procedure for closing down of an undertaking governed by Chapter V-B as laid down by Section 25-O of the very same chapter gets excluded for an undertaking dealing with construction of buildings etc. or for other construction work then ipso facto the said exclusion would also apply to retrenchment of workmen of that very establishment governed by Chapter V-B of the Act. For coming to this conclusion the High Court has also pressed in service provisions of Section 25-FFF sub-section (2) of the Act. The second reason given by the Division Bench for excluding Section 25-N as noted earlier is that Respondent company in any case is not an 'industrial establishment' as defined by Section 25-L(a) of the Act being not a 'factory' as defined by the Factories Act. The learned Single Judge on the other haad, has taken a contrary view about the applicability of Section 25-L read with Section 25- N of the Act. It becomes, therefore, necessary for us to closely examine the twin reasons given by the Division Bench of the High Court in the impugned judgment for excluding applicability of Section 25-N of the Act. We accordingly proceed to do so.

That takes us to the consideration of the second reason which weighed with the High Court for dispensing with the applicability of Section 25-N in the present case. As noted earlier, sub-section (1) of Section 25-N lays down the procedure as conditions precedent to retrenchment of workmen employed in an 'industrial establishment' to which Chapter V-B applies. Section 25-N is in Chapter V-B, We have, therefore, to turn to Section 25-L which lays down the requirements of 'industrial establishment governed by Chapter V-B. It is a definition section which lays down that for the purpose of Chapter V-B an industrial establishment amongst others would mean "(i) a factory as defined in clause(m) of Section 2 of the Factories Act, 1948 (63 of 1948)". This is not an inclusive definition. Therefore, all its requirements have to .be met by an establishment so as to fall in Chapter V-B. We are not concerned with other parts of the said definition. It, therefore, becomes necessary to find out as to whether Rihand Nagar project of the Respondent company was in 'industrial establishment' meaning thereby whether it was a. '.factory' as defined in clause (m) of Section 2 of the Factories Act., 1948, It is obvious that if it was not such a 'factory', it would not be an 'industrial establishment' governed by Chapter V-B. Consequently, the workmen employed therein would not be covered by Section 25-N sub-section (1). Definition of the term 'factory' as found in Section 2(m) of the Factories Act, 1948, reads as under :

Before, parting with discussion on the point, we may note one submission of learned senior counsel for the appellants. In his submission the proviso to Section 25-O sub-section (1) itself postulates the legislative intent that but for the said proviso even construction activities undertaken by the undertakings would be covered by Chapter V-B of the Act and therefore, it can be said to be an 'industrial establishment' i.e. a factory. Shri Dave, learned senior counsel for the Respondent tried to repel this contention by submitting that Section 25-N deals with 'industrial establishments 'to which Chapter V-B applies while Section 25-0 deals with the undertaking of an 'industrial establishment'. It is, therefore, possible that an 'industrial establishment' may be a 'factory' as defined by Section 25-L of the Act still one of its undertakings which may not by itself be a 'factory' but still may get covered by Chapter V-B and therefore, Section 25-O would apply to such an undertaking and only such undertakings of the industrial establishment which are factories that are sought to be exempted by the proviso to Section 25-O sub-section (1). He gave an illustration for highlighting his contention. For, example, a cement company, which manufactures cement may be a 'factory' covered by Section 25-L of the Act where manufacture of cement takes place. It may undertake construction activities through one of its limbs or undertakings at a different place. This may result into a situation where the industrial establishment as such may be a 'factory' but its unit or construction undertaking may not be a 'factory' and still would be covered by Chapter V-B and would attract Section 25-O but for the provisos In short, it was contended that the proviso to subjection (I) of Section 25 -O necessarily does not operate in the same field in which the main parent establishment may operate. We find considerable force in the aforesaid contention of Shri Dave, It must, therefore, be held that before Section 25-N can be held applicable to an 'industrial establishment' the establishment itself must be found to be a 'factory' as defined by Section 25-L before provisions of Section 25-N can be pressed in service qua such an 'industrial establishment,' and for deciding this question the provisions of Section 25 (O)(1) or its proviso would not offer any assistance.