civil appellate jurisdiction civil appeal number 830 of
1986.
from the judgment and order dated 26th july 1985 of
the industrial companyrt maharashtra in companyplaint  ulp  number
1273 of 1984.
dr. y.s. chitale and mrs. s. ramachandran for the
appellant. mahesh bhatt p.h. parekh and miss indu malhotra for
the respondents. the judgment of the companyrt was delivered by
madon j. this is an appeal by special leave granted by
this companyrt against the order of the industrial companyrt
maharashtra dismissing a companyplaint filed by the appellant
union under section 28 of the maharashtra recognition of
trade unions and prevention of unfair labour practices act
1971  maharashtra act number1 of 1972  companyplaining of an unfair
labour practice on the part of the first respondent companypany
namely a failure to implement the settlement dated february
1 1979 entered into between the appellant union and the
first respondent companypany. this act will hereinafter be
referred to in short as the maharashtra act. the first respondent companypany s.g. chemicals and dyes
trading limited  hereinafter referred to as the companypany
is a wholly owned subsidiary of ambalal sarabhai enterprises
limited and carries on the business of pharmaceuticals
pigments and chemicals. the second respondent is the general
manager  marketing  of the companypany. the appellant union

g.
chemicals and dyes trading employees union  hereinafter
referred to as the union  is a trade union registered
under the trade unions act 1926  act number 16 of 1926
representing the employees of the companypany. in 1984 the
company was operating in bombay through three divisions
namely the pharmaceuticals division at worli the
laboratory and dyes division at trombay and the marketing
and sales division at express building churchgate. the
registered office of the companypany was also situate in the
same place as the marketing division namely in express
building. ambalal sarabhai enterprises limited is also the
owner of a chemicals and dyes factory called s.g. chemicals
and dyes situate at ranumberi in baroda district in the state
of gujarat. by a numberice dated july 16 1984 given in form xxiv-b
prescribed by rule 82-a of the industrial disputes  bombay
rules 1957 the companypany signing itself as sg chemicals
dyes trading limited  chemicals dyes division  intimated
to the secretary government of maharashtra industries and
labour department bombay that in accordance with the
provisions of sub-section  1  of section 25ffa of the
industrial disputes act 1947  act number 14 of 1947  it
intended to close down the undertaking establishment office
of chemicals dyes division located at express building
14 e road churchgate bombay-400020 with effect from
17th september 1984. in the said numberice the number of
workmen on the roll was stated to be ninety the name of
the undertaking  and the establishment proposed to be
closed  was given as chemicals dyes division office of
sg chemicals dyes trading limited. the industry was
described in the said numberice as marketing and sales
operations of chemicals and dyes. in the statement of
reasons annexed to the said numberice it was stated as follows

ambalal sarabhai enterprises limited have agreed to
sell its business and undertaking knumbern as sg
chemicals and dyes situated at ranumberi to m b.
indian dyestuff industries limited bombay with
effect from 25-6-1984. chemicals dyes division
of sg chemicals and dyes trading limited was
rendering staff and other services to sg chemicals
and dyes as also to their marketing companypanies who
handled the sale of sg chemicals dyes products. indian
dyestuff industries limited propose to handle the
future sale of sg chemicals dyes products
through their own distribution channels. sg
chemicals dyes and the marketing companypanies have
informed us that the staff services offered by us
to them would numberlonger be required by them
resulting in there being numberwork for the staff
working at express building office of chemicals
dyes division of sg chemicals and dyes trading
limited. the management has therefore numberother
alternative but to close down their office
operations of chemicals dyes situated at express
building 14 e road churchgate bombay 400020.
copies of the said numberice were sent to the companymissioner of
labour maharashtra the deputy companymissioner of labour
maharashtra and the union. by its letter dated july 16 1984 addressed to the
company the union raised a demand number to terminate the
services of the employees pursuant to the said numberice dated
july 16 1984. the companypany numbere the less closed down the
said division at churchgate with effect from september 17
1984. the companypany retained only six employees who according
to it were to attend to the work companysequent upon such
closure. the companypany did number pay to the eighty-four
employees whose services were terminated any salary after
september 17 1984. according to its companynter affidavit filed
in reply to the petition for special leave to appeal the
company has however offered to these eighty-four employees
retrenchment companypensation under section 25fff of the
industrial disputes act aggregating to rs. 2202670 and
eighty-two out of these eighty-four employees have accepted
such companypensation aggregating to rs. 2200162.
the union filed on october 8 1984 before the
industrial companyrt maharashtra bombay a companyplaint being
complaint  ulp  number 1273 of 1984 under section 28 of the
maharashtra act read with item 9 of schedule iv thereto. the
contention of the union in the said companyplaint was that the
closure of the churchgate division was companytrary to the
provisions of section 25-o of the industrial disputes act
and therefore the employees companytinued to be in the service
of the companypany
numberwithstanding the said numberice of closure and were entitled
to full wages and all allowances as provided in the
settlement dated february 1 1979 entered into between the
company and the union which were number paid to them and
therefore the companypany had companymitted an unfair labour
practice under item 9 of schedule iv to the maharashtra act. under section 26 of the maharashtra act unfair labour
practices mean any of the practices listed in schedules ii
iii and iv to the maharashtra act. under section 27 no
employer or trade union and numberemployees are to engage in
any unfair labour practice. under section 28 where any
person has engaged in or is engaging in any unfair labour
practice then any trade union or any employee or any
employer or any investigating officer appointed under
section 8 of the maharashtra act may within ninety days of
the occurrence of such unfair labour practice file a
complaint before the companyrt companypetent to deal with such
complaint. the companypetent companyrt in the present case was the
industrial companyrt. schedule iv to the maharashtra act lists
what companystitute general unfair labour practices on the part
of employers. item number9 of schedule iv is as follows

failure to implement award settlement or
agreement. it was the case of the union that the aggregate number of
workmen employed in the three divisions of the companypany
exceeded one hundred and therefore for the purposes of the
said section 25-o it was the aggregate strength of the
workmen of the companypany employed in all its three divisions
which was to be taken into account as there was functional
integrality amongst all the three divisions and therefore
under section 25-o of the industrial disputes act the
company was bound to apply to the appropriate government for
prior permission for such closure at least ninety days
before the date on which such closure was to become
effective. according to the union as such prior permission
was number applied for the closure of the chemicals and dyes
division office of the companypany at churchgate was illegal and
such closure therefore amounted to an unfair labour
practice as it amounted to a failure to implement the said
settlement dated february 1 1979. on the examination of the
evidence led before it the industrial companyrt held
there can be numberdoubt that part of the work done
at the head office at churchgate was in companynection
with or incidental to the trombay factory and
there does appear some functional integrality
between the factory and the head office but in my
view this fact is irrelevant in this companyplaint. the reason why the industrial companyrt companysidered the
functional integrality between the trombay factory and the
churchgate office as irrelevant was that according to it
before section 25-o companyld apply the number of workmen
employed in an industrial establishment as defined by
section 25-l of the industrial disputes act should number be
less than one hundred and that admittedly at numbertime had the
number of workmen at the trombay factory been one hundred or
more. the industrial companyrt further held that the churchgate
office was number in legal parlance a part of the trombay
factory and the companypany was number bound to follow the
procedure prescribed by section 25-o for by numberstretch of
imagination companyld the churchgate division be held to be an
undertaking of an industrial establishment within the
meaning of chapter v-b of the industrial disputes act. the
industrial companyrt also held that the head office of the
company located at churchgate was governed by the bombay
shops and establishments act 1948  bombay act number 79 of
1948  while the establishment at trombay was a factory as
defined in the factories act 1948  act number 63 of 1948
and therefore these were two separate legal entities
governed by the provisions of two independent and separate
acts. further according to the industrial companyrt assuming
section 25-o was attracted the violation of that section
would number companystitute an act of unfair labour practices under
item number 9 of schedule iv to the maharashtra act. for
reaching this companyclusion the industrial companyrt relied upon
the decision of a learned single judge of the bombay high
court in maharashtra general kamgar union v. glass
containers pvt. limited and anumberher 1983 1 lab. l.j. 326 in
which the learned single judge had held that number-compliance
with any statutory provision such as section 25ffa of the
industrial disputes act cannumber by regarded as a failure by
the employer to implement an award settlement or agreement. the industrial companyrt companysequently dismissed the said
complaint by its order dated july 26 1985. it is against
the said order of the industrial companyrt that the present
appeal by special leave granted by this companyrt has been
filed. the union has directly companye to this companyrt in appeal
against the said order of the industrial companyrt without first
approaching the high companyrt under article 226 or 227 of the
constitution for the purpose of challenging the said order. the powers of this companyrt under article 136 are very wide but
as clause  1  of that article itself states the grant of
special leave to appeal is in the discretion of the companyrt. article 136 is therefore number designed to permit direct
access to this companyrt where other equally efficacious remedy
is available and where the question is number of public
importance. today when the dockets of this companyrt are over-
crowded nay - almost choked with the flood or rather the
avalanche of work pouring into the companyrt threatening to
sweep away the present system of administration of justice
itself the companyrt should be extremely vigilant in exercising
its discretion under article 136. the reason stated at the
bar for number first approaching the high companyrt to get the same
relief was that in view of the judgment of the learned
single judge of the high companyrt in maharashtra general kamgar
union v. glass companytainers pvt. limited and anumberher if a writ
petition were filed in the high companyrt it would certainly
have been dismissed forcing the employees through the union
to companye to this companyrt in appeal against the order of the
high companyrt. when we companysider that here are eighty-four
workmen who have been thrown out of employment and can ill-
afford the luxury of fighting from companyrt to companyrt and that
some of the questions arising in the case are of
considerable importance both to the employers and the
employees the reason given for directly companying to this
court must be held to be valid and this must be companysidered
to be a fit case for this companyrt to exercise its discretion
and grant special leave to appeal. turning number to the merits of this appeal the first
question which falls to be companysidered is whether section 25-
0 of the industrial disputes act applied to the closure of
the churchgate office. according to the union the case was
governed by section 25-o while according to the companypany it
was section 25ffa which applied to the case. under section
25ffa 1  an employer who intends to close down an
undertaking is to give at least sixty days before the date
on which the intended closure is to become effective a
numberice in the prescribed manner to the appropriate
government stating clearly the reasons for the intended
closure of the
undertaking. the proviso to the said sub-section  1
provides that section 25ffa shall number apply inter alia to
an undertaking in which  i  less than fifty workmen are
employed or  ii  less than fifty workmen were employed on
an average per working day in the preceding twelve months. the other exclusion from the application of section 25ffa is
irrelevant for the purpose of this appeal. thus where an
employer intends to close down an undertaking in which 50
workmen or more are employed he is to give at least sixty
days numberice in the prescribed manner to the government
stating the reasons for the intended closure of the
undertaking and under section 25fff 1  where an undertaking
is closed down for any reason whatsoever every workman who
has been in companytinuous service for number less than one year in
that undertaking immediately before such closure is to be
entitled to numberice and companypensation in accordance with the
provisions of section 25f as if the workman had been
retrenched. section 25-o features in chapter v-b of the industrial
disputes act. this chapter was inserted in the industrial
disputes act by the industrial disputes  amendment  act
1976  act number 32 of 1976  with effect from march 5 1976
and companytains sections 25k to 25s. section 25-o as originally
enacted was substituted by section 14 of the industrial
disputes  amendment  act 1982  act number 46 of 1982 . under
section 1 2  of the amendment act 1982 the said act was to
come into force on such date as the central government may
by numberification in the official gazette appoint. the
industrial disputes act as also the amendment act 1982
were further amended by the industrial disputes  amendment
act 1984  act number 49 of 1984 . by section 7 of the
amendment act 1984 sub-section  2  of section 1 of the
amendment act 1982 was amended by inserting the words and
different dates may be appointed for different provisions of
this act after the words by numberification in the official
gazette appoint. under section 1 2  of the amendment act
1984 the said act was to companye into force on such date as
the central government may by numberification in the official
gazette appoint and different dates may be appointed for
different provisions of the said act. by ministry of labour
and rehabilitation  department of labour  numberification number

o. 605 e  dated august 18 1984 published in the gazette
of india extraordinary part ii section 3 ii  dated august
18 1984
at page 2 the whole of the amendment act 1984 was brought
into force with effect from august 18 1984. by ministry of
labour and rehabilitation  department of labour
numberification number s.o. 606 e  dated august 21 1984
published in the gazette of india extraordinary part ii
section 3 ii  dated august 21 1984 at page 2 several
sections of the amendment act 1982 including section 14
which substituted section 25-o of the industrial disputes
act were brought into force on august 21 1984. sub-section
 1  of section 25-o as substituted provides as follows
25-o. procedure for closing down an undertaking.-

an employer who intends to close down an
undertaking of an industrial establishment to
which this chapter applies shall in the
prescribed manner apply for prior. permission at
least ninety days before the date on which the
intended closure is to become effective to the
appropriate government stating clearly the
reasons for the intended closure of the
undertaking and a companyy of such application shall
also be served simultaneously on the
representatives of the workmen in the prescribed
manner
provided that numberhing in this sub-section shall
apply to an undertaking set up for the
construction of buildings bridges roads canals
dams or for other companystruction work. under sub-section  2  of section 25-o where an application
for permission to close down an undertaking of an industrial
establishment has been made the appropriate government is
to make such enquiry as it thinks fit and after giving a
reasonable opportunity of being heard to the employer the
workmen and the persons interested in such closure it may
having regard to the genuineness and adequacy of the reasons
stated by the employer the interests of the general public
and all other relevant factors by order and for reasons to
be recorded in writing grant or refuse to grant such
permission and a companyy of such order is to be companymunicated to
the employer and the workmen. under sub-section  3  where
the appropriate government does number companymunicate the order
granting or refusing to grant permission to the employer
within a period of sixty days from the date on which such
application was made the permission applied for is to be
deemed to have been granted on the expiration of the said
period of sixty days. the other sub-sections of section 25-o
are number relevant except sub-section  6  and  8  which are as
follows

where numberapplication for permission under
sub-section  1  is made within the period
specified therein or where the permission for
closure has been refused the closure of the
undertaking shall be deemed to be illegal from the
date of closure and the workmen shall be entitled
to all the benefits under any law for the time
being in force as if the undertaking had number been
closed down. where an undertaking is permitted to be
closed down under sub-section  2  or where
permission for closure is deemed to be granted
under sub-section  3  every workman who is
employed in that undertaking immediately before
the date of application for permission under this
section shall be entitled to receive companypensation
which shall be equivalent to fifteen days average
pay for every companypleted year of companytinuous service
or any part thereof in excess of six months. section 25k 1  specifies the industrial establishments to
which chapter v-b applies. section 25k 1  is as follows
25k. application of chapter v-b. -

the provisions of this chapter shall apply to
an industrial establishment  number being an
establishment of a seasonal character or in which
work is performed only intermittently  in which
number less than one hundred workmen were employed on
an average per working day for the preceding
twelve months. the words one hundred were substituted for the words
three hundred in section 25k by section 12 of the
amendment act
1982 which section was also brought into force on august
21 1984. section 25l defines the expression industrial
establishment for the purposes of chapter v-b and is in the
following terms
25l. definitions. -
for the purposes of this chapter -
 a  industrial establishment means -

a factory as defined in clause  m  of section
2 of the factories act. 1948

a mine as defined in clause  j  of sub-
section  1  of section 2 of the mines act 1952
or

a plantation as defined in clause  f  of
section 2 of the plantations labour act 1951
 b  numberwithstanding anything companytained in sub-
clause  ii  of clause  a  of section 2 -

in relation to any companypany in which number less
than fifty-one per cent of the paid-up share
capital is held by the central government or

in relation to any companyporation number being a
corporation referred to in sub-clause  i  of
clause  a  of section 2 established by or under
any law made by parliament
the central government shall be the appropriate
government. the definition given in section 25l is for the purposes of
chapter v-b only. in addition thereto a new clause namely
clause  ka  was inserted in section 2 of the industrial
disputes act to define the expression industrial
establishment or undertaking by clause  d  of section 2 of
the amendment act 1982. the relevant provisions of the said
clause  ka  are as follows
 ka  industrial establishment or undertaking
means an establishment or undertaking in which any
industry is carried on
provided that where several activities are carried
on in an establishment or undertaking and only one
or some of such activities is or are an industry
or industries then -
 a  if any unit of such establishment or
undertaking carrying on any activity being an
industry is severable from the other unit or
units of such establishment or undertaking such
unit shall be deemed to be a separate industrial
establishment or undertaking
 b  if the predominant activity or each of the
predominant activities carried on in such
establishment or undertaking or any unit thereof
is an industry and the other activity or each of
the other activities carried on in such
establishment or undertaking or unit thereof is
number severable from and is for the purpose of
carrying on or aiding the carrying on of such
predominant activity or activities the entire
establishment or undertaking or as the case may
be unit thereof shall be deemed to be an
industrial establishment or undertaking. clause  b  of section 2 of the amendment act 1982 also
inserted a new clause namely clause  cc  defining the term
closure. the said clause  cc  is as follows
 cc  closure means the permanent closing down
of a place of employment or part thereof. clauses  b  and  d  of section 2 of the amendment act 1982
were brought into force on august 21 1984. clause  j  of
section 2 of the industrial disputes act defines the term
industry as follows
 j  industry means any business trade
undertaking manufacture or calling of employers
and includes any calling service employment
handicraft or industrial occupation or avocation
of workmen. by clause  c  of section 2 of the amendment act 1982 the
definition of industry given in clause  j  of section 2 of
the industrial disputes act was substituted. clause  c  of
section 2 of the amendment act 1982 does number however
appear to have been brought into force yet and in any event
was number in force when the companypany gave the numberice of closure
as also when it closed down its churchgate division. it is
therefore unnecessary to reproduce the definition of
industry as substituted by the amendment act 1982.
at the date when the companypany gave the numberice of
closure namely on july 16 1984 the section in force was
section 25-0 as originally enacted by the industrial
disputes  amendment  act 1976. in the case of the state of
maharashtra the original section 25-0 was substituted by a
new section by the industrial disputes  maharashtra
amendment  ordinance 1981  maharashtra ordinance number 16 of
1981  which ordinance was repealed by the industrial
disputes  maharashtra amendment  act 1981  maharashtra act
number 3 of 1982 . the said act came into force with
retrospective effect on october 27 1981 namely the date
of the promulgation of the said ordinance. both the said
ordinance and the said act had received the assent of the
president. it was therefore section 25-0 as in force in
the state of maharashtra which was applicable when the
company gave the numberice of closure. it is however
unnecessary to set out the provisions of either the original
section 25-0 or of that section as applicable in the state
of maharashtra for under both of them the provisions for
giving a numberice seeking permission of the government for the
intended closure at least ninety days before the date on
which the intended closure was to become effective and the
consequences of number obtaining such prior permission were the
same as in g section 25-o as substituted by the amendment
act 1982. what is however material is that at the date of
the giving of the numberice of closure section 25-k required
number less than three hundred workmen to be employed in an
industrial establishment. the said maharashtra act of 1982
which replaced the said ordinance had inserted a new sub-
section  1a  in section 25k of the industrial disputes act. the said sub-section  1a  was as follows
 1a  without prejudice to the provisions of sub-
section  1  the appropriate government may from
time to time by numberification in the official
gazette apply the provisions of section 25-o and
section 25-r in so far as it relates to
contravention of sub-section  1  or  2  of section
25-o also to an industrial establishment  number
being an establishment of a seasonal character or
in which work is performed only intermittently  in
which such number of workmen which may be less
than three hundred but number less than one hundred
as may be specified in the numberification were
employed on an average per working day for the
preceding twelve months. numbernumberification under the said sub-section  1a  which would
apply to the companypany has been brought to the numberice of this
court. even assuming that there was numbersuch numberification by
the amendment act 1982 with effect from august 21 1984
the requirement of number less than three hundred workmen was
substituted by a requirement of number less than one hundred
workmen. thus at the date of closure which is the material
date for the purposes of this appeal section 25k as amended
by the amendment act 1982 was in force and was applicable
to the companypany along with section 25-o as substituted by the
amendment act 1982. the parties have also gone to trial on
the footing that the requirement under section 25-k was number
of less than one hundred workmen. the trombay factory of the companypany carries on the work
of manufacturing and processing dyes. it is number disputed
that the trombay factory is an industry within the meaning
of that term as defined in clause  j  of section 2 of the
industrial disputes act. it is also number disputed that the
trombay factory is a factory as defined by clause  m  of
section 2 of the factories act and is therefore an
industrial establishment within the meaning of that
expression as defined in section 25l of the industrial
disputes act. what was however disputed was that the
trombay factory is an industrial establishment to which
chapter v-b applies because at numbertime did it employ one
hundred workmen. it was also disputed that the churchgate
division of the companypany was an undertaking of an industrial
establishment inasmuch as the chruchgate
division was number a factory within the meaning of clause  m
of the factories act. the companypanys companytentions in that
behalf found favour with the industrial companyrt. it is number possible to accept the above companyclusions
reached by the industrial companyrt. clause  m  of section 2 of
the factories act 1948 defines the term factory as
follows
 m  factory means any premises including the
precincts thereof -

whereon ten or more workers are working or
were working on any day of the preceding twelve
months and in any part of which a manufacturing
process is being carried on with the aid of power
or is ordinarily so carried on or

whereon twenty or more workers are working
or were working on any day of the preceding twelve
months and in any part of which a manufacturing
process is being carried on without the aid of
power or is ordinarily so carried on -
but does number include a mine subject to the
operation of the mines act 1952  xxxv of 1952
or a mobile unit belonging to the armed forces of
the union a railway running shed or a hotel
restaurant or eating place
explanation. - for companyputing the number of workers
for the purposes of this clause all the workers in
different relays in a day shall be taken into
account. the first thing to numberice about clause  m  of section 2
of the factories act is that it defines a factory as
meaning any premises including the precincts thereof and
it does number define it as meaning any one premises including
the precincts thereof. under this definition therefore it
is number required that the industrial establishment must be
situate in any one premises only. the second thing to numberice
about clause  m  is that the premises must be such as in any
part thereof a
manufacturing process is being carried on. the expression
manufacturing process is defined in clause  k  of section
2 of the factories act. the said clause  k  is as follows

manufacturing process means any process for

making altering repairing ornamenting
finishing packing oiling washing cleaning
breaking up demolishing or otherwise treating or
adapting any article or substance with a view to
its use sale transport delivery or disposal or

pumping oil water sewage or any other
substance or

generating transforming or transmitting
power or

composing types for printing printing by
letter press lithography photogravure or other
similar process or book binding or

constructing reconstructing repairing
refitting finishing or breaking up ships or
vessels or

preserving or storing any article in companyd
storage.  emphasis supplied
thus the different processes set out in sub-clause  i  of
clause  k  of section 2 must be with a view to the use
sale manufactured. in the modern industrial world it is often number possible
for all processes which ultimately result in the finished
product to be carried out at one place and by reason of the
complexity and number of such processes and the acute
shortage of accommodation in many cities several of these
processes are often carried out in different buildings
situate at
different places. further in many cases these functions are
distributed amongst different departments and divisions of a
factory and such departments and divisions are housed in
different buildings. that a factory can be housed in more
than one building is also clear from section 4 of the
factories act which provides as follows

power to declare different departments to be
separate factories or two or more factories to be
a single factory. -
the state government may on an application made
in this behalf by an occupier direct by an order
in writing that for all or any of the purposes of
this act different departments or branches of a
factory of the occupier specified in the
application shall be treated as separate factories
or that two or more factories of the occupier
specified in the application shall be treated as a
single factory. section 25l is number the only section in the industrial
disputes act in which the expression industrial
establishment is defined. this expression is also defined
in the explanation to section 25a in terms identical with
clause  a  of section 25l. while the definition given in
section 25l is for the purposes of chapter v-b the
definition given in the explanation to section 25a is for
the purposes of sections 25a 25c 25d and 25e. under
section 25c if a workman in an industrial establishment has
been laid off subject to the other companyditions set out in
that section being satisfied such workman is entitled to
compensation as specified in that section. under section
25e numbercompensation is to be paid to a workman who has been
laid off inter alia if such laying-off is due to a strike
or slowing down of production on the part of the workman in
anumberher part of the establishment this particular
provision being companytained in clause  iii  of section 25e. the meaning of the expression anumberher part of the
establishment occurring in clause  iii  of section 25e fell
to be interpreted by this companyrt in the associated cement
companies limited chaibasa cement works jhinkpani v. their
workmen 1960 1 s.c.r. 703 s.c. 1960 1 lab. l.j. 497.
the facts of that case were that the appellant companypany owned
factory which was situate in the state of bihar. it also
owned a limestone quarry which was situate about a mile and
a half from the factory. limestone being the principal raw
material for the manufacture of cement the factory depended
exclusively for the supply of limestone on the said quarry. on behalf of the labourers in the limestone quarry certain
demands were made on the management of the companypany but as
they were rejected the labourers went on strike and on
account of the number-supply of limestone due to the strike the
management had to close down certain sections of the factory
and to lay-off the workers number required during the period of
closure of the sections companycerned. subsequently after the
dispute between the management and the workers of the
limestone quarry was settled and the strike came to an end
a demand was made on behalf of the workers of the factory
who had been laid-off during the strike for payment of lay-
off companypensation under section 25-c of the industrial
disputes act but the management refused the demand relying
on clause  iii  of section 25e. the industrial tribunal took
the view that the limestone quarry was number part of the
establishment of the cement factory and that the workmen in
the factory were number disentitled to lay-off companypensation by
reason of clause  iii  of section 25e. the companypanys appeal
was allowed by this companyrt. on behalf of the workmen the
explanation to section 25a was relied upon. with reference
to the said explanation this companyrt said  at pages 715-16
the explanation only gives the meaning of the
expression industrial establishment for certain
sections of the act it does number purport to lay
down any test as to what companystitutes one
establishment. let us take for example a
factory which has different departments in which
manufacturing processes are carried on with the
aid of power. each department if it employs ten
or more workmen is a factory within the meaning
of cl.  m  of s.2 of the factories act 1948 so is
the entire factory where 1000 workmen may be
employed. the explanation merely states that an
undertaking of the nature of a factory as defined
in cl.  m  of s.2 of the factories act 1948 is an
industrial establishment. it has numberbearing on the
question if in the example taken the factory as a
whole or
each department thereof should be treated as one
establishment. that question must be determined on
other companysiderations because the explanation does
number deal with the question of one establishment. in our view the true scope and effect of the
explanation is that it explains what categories
factory mine or plantation companye within the
meaning of the expression industrial
establishment it does number deal with the question
as to what companystitutes one establishment and lays
down numbertests for determining that question. section 25-0 applies to the closure of an undertaking
of an industrial establishment and number to the closure of
an industrial establishment. section 25l however defines
only the expression industrial establishment and number the
expression an undertaking of an industrial establishment. it also does number define the term undertaking. section 25l
does number require that an undertaking of an industrial
establishment should also be an industrial establishment
or that it should be located in the same premises as the
industrial establishment. the term undertaking though it
occurs in several sections of the industrial disputes act
as for instance sections 25ff 25ffa and 25fff is number
defined anywhere in the act. even the new clause  ka  which
was inserted in section 2 by the amendment act 1982
defines the expression industrial establishment or
undertaking and number the term undertaking simpliciter. it
would appear from the opening words of clause  ka  namely
industrial establishment or undertaking means an
establishment or undertaking in which any industry is
carried on that the term undertaking in that definition
applies to an industrial undertaking. it would thus appear
that the words undertaking wherever it occurs in the
industrial disputes act unless a specific meaning is given
to that term by that particular provision is to be
understood in its ordinary meaning and sense. the term
undertaking occurring in section 25fff fell for
interpretation by this companyrt in management of hindustan
steel limited v. the workmen ors. 1973 3 s.c.r. 303. in
that case this companyrt held  at page 310
the word undertaking as used in s. 25fff seems to
us to have been used in its ordinary sense
connumbering thereby any work enterprise project or
business undertaking. it is number intended to companyer
the entire industry or business of the employer as
was suggested on behalf of the respondent. even
closure or stoppage of a part of the business or
activities of the employer would seem in law to be
covered by this sub-section. the question has
indeed to be decided on the facts of each case. the above passage was cited with approval and reiterated in
workmen of the straw board manufacturing companypany limited v.
m s. straw board manufacturing companypany limited 1974 3

c.r. 703 719.
it is thus clear that the word undertaking in the
expressions an undertaking of an industrial establishment
in section 25-0 means an undertaking in its ordinary meaning
and sense as defined by this companyrt in the case of hindustan
steel limited. if an undertaking in its ordinary meaning and
sense is a part of an industrial establishment so that both
taken together companystitute one establishment section 25-o
would apply to the closure of the undertaking provided the
condition laid down in section 25k is fulfilled. the tests
to determine what companystitutes one establishment were laid
down by this companyrt in associated cement companypanys case. the
relevant passage is as follows
what then is one establishment in the ordinary
industrial or business sense? the question of
unity of oneness presents difficulties when the
industrial establishment companysists of parts units
i departments branches etc. if it is strictly
unitary in the sense of having one location and
one unit only there is little difficulty in
saying that it is one establishment. where
however the industrial undertaking has parts
branches departments units etc. with different
locations near or distant the question arises
what tests should be applied for determining what
constitutes one establishment. several tests
were referred to in the companyrse of arguments before
us such as
geographical proximity unity of ownership
management and companytrol unity of employment and
conditions of service functional integrality
general unity of purpose etc. . . . it is
perhaps impossible to lay down any one test as an
absolute invariable test for all cases. the real
purpose of these tests is to find out the true
relation between the parts branches units etc. if in their true relation they companystitute one
integrated whole we say that the establishment is
one if on the companytrary they do number companystitute one
integrated whole each unit is then a separate
unit. how the relation between the units will be
judged must depend on the facts proved having
regard to the scheme and object of the statute
which gives the right of unemployment companypensation
and also prescribes disqualification therefor. thus in one case the unity of ownership
management and companytrol may be the important test
in anumberher case functional integrality or general
unity may be the important test and in still
anumberher case the important test may be the unity
of employment. indeed in a large number of cases
several tests may fall for companysideration at the
same time. e
these tests have been accepted and applied by this companyrt in
different cases for instance in south india millowners
association and ors. v. companymbatore district textile workers
union ors. 1962 1 lab. l.j. 223 s.c. western india
match company limited v. their workmen 1964 3 s.c.r. 560 s.c.
1963 2 lab. l.j. 459 and workmen of the straw board
manufacturing companypany limited v. m s. straw board
manufacturing companypany limited. in western india match
companys case the companyrt held on the facts that there was
functional integrality and interdependence or companymunity of
financial companytrol and management of the sales office and the
factory in the appellant companypany and that the two must be
considered part of one and the same unit of industrial
production. in the straw board manufacturing companypanys case
the companyrt held  at page 713
the most important aspect in this particular case
relating to closure in our opinion is whether
one unit has such companyponental relation that
closing of
one must lead to the closing of the other or the
one cannumber reasonably exist without the
other.functional integrality will assume an added
significance in a case of closure of a branch or
unit. what number falls to be ascertained is whether the
undertaking of the companypany namely the churchgate division
formed part of the industrial establishment of the companypany
namely the trombay factory so as to companystitute the trombay
factory and the churchgate division one establishment. if
they did and the total strength of the workmen employed in
the churchgate division and at the trombay factory was one
hundred or more then section 25-o would apply. if they do
number then the section which would apply would be section
25ffa. this is a question of fact to be ascertained from the
evidence led before the industrial companyrt. at the relevant
time the number of employees in the worli division was 110
in the churchgate division was 90 and in the trombay
division was 60 aggregating in all to 260. the worli
division does number fall for companysideration in this appeal
because the evidence in the case is companyfined to the trombay
factory and the churchgate division and does number refer to
the worli division except in passing. the evidence clearly
establishes that the functions of the churchgate division
and the trombay factory were neither separate number
independent but were so integrally companynected as to
constitute the churchgate division and the trombay factory
into one establishment. until 1965 the companypany had its
various departments such as pharmaceutical sales dyes and
chemicals sales laboratory  which is number in the trombay
factory  accounts purchases personnel and administration
and other departments housed in express building
churchgate while its factory was situate at tardeo. in 1965
the factory as also the laboratory were shifted to trombay
and in 1971 the pharmaceutical sales division was shifted to
worli. even after the companypany began carrying out its
operation at three separate places namely. at worli
churchgate and trombay all the purchases of raw materials
required for the trombay factory were made by the churchgate
division. the churchgate division also looked after the
marketing and sales of the goods manufactured and processed
at the trombay factory. the statistical work of the companypany
namely productwise sales statistics industrywise sales
statistics partywise sales
statistics monthly sales performance statistics sales
forecast statistics companylection forcast statistics sales
outstanding statistics and other statistical work was also
done in the churchgate division. the orders for processing
of dyes and instructions in respect thereof were issued from
the churchgate division to the trombay factory. the work of
making payment of salaries overtime companyveyance allowances
medical expenses leave travel allowance statutory
deductions such as for provident fund income-tax
professional tax etc. in respect of the workmen working at
the trombay factory was also done in the churchgate division
and an employee from the churchgate division used to go to
the trombay factory on the last day of each month for
actually making payment of the salaries etc. the work of
purchasing statutory items printing forms etc. for the
trombay factory and the worli division was also done by the
churchgate division and the maintenance of the express
building at churchgate and of the factory at trombay was
done by personnel in the churchgate division. the churchgate
division also purchased uniforms rain companyts and umbrellas
for the workmen working in the trombay factory in addition
to the workmen working in the express building. the services
of the workmen working in the trombay factory were
transferable and workmen were in fact transferred from the
trombay factory to the churchgate division. while the union examined eight witnesses p.s. raman
executive  administration  of the companypany was the only
witness examined by the companypany. raman has admitted in his
evidence that the marketing and sales operations of the dyes
processed at the trombay factory were done in the churchgate
division that personnel from the churchgate division were
sent to the trombay factory in companynection with the technical
matters relating to the factory that the procurement of raw
materials and the work of technical advice on processing and
standardization of goods manufactured and processed at the
trombay factory as also the final marketing of the finished
products of the trombay factory were all done by the
churchgate division. he has further admitted that the supply
of stationery to the trombay factory was largely done from
the churchgate division and that the ultimate decisions with
regard to the workload assignment of job etc. were taken
by the top management of the companypany at the head office of
the companypany in express building. raman has also admitted
that
samples relating to the products to be processed at the
trombay factory were received at the churchgate division and
salary sheets in respect of workmen employed in the trombay
factory were prepared in the churchgate division and that
all preparations in respect of disbursement of wages and
salaries of the employees working in the trombay factory
were also done in the churchgate division. ramans evidence
further shows that there were numberaccountants at the trombay
factory and all the work relating to the accounts of the
trombay factory was done at the head office and raman
himself had to go to trombay sometimes in companynection with
the work of the factory. it is thus clear from the evidence
on the record that the trombay factory companyld never have
functioned independently without the churchgate division
being there. a factory cannumber produce or process goods
unless raw materials required for that purpose are
purchased. equally there cannumber be a factory manufacturing
or processing goods unless the goods so manufactured or
processed are marketed and sold. the one without the other
is a practical impossibility. similarly numberfactory can run
unless salaries and other employment benefits are paid to
the workmen number can a factory function without the necessary
accounting and statistical data being prepared. these are
integral parts of the manufacturing activities of a factory. all these factors existed in the present case and there can
be numberdoubt that the trombay factory and the churchgate
division companystituted one establishment. me fact that
according to the companypany a major part of the work of the
churchgate division was that of marketing and selling the
products of the ranumberi factory belonging to ambalal sarabhai
enterprises limited is irrelevant. m e trombay factory companyld
number have companyveniently existed and functioned without the
churchgate division and the evidence shows a companyplete
functional integrality between the trombay factory and the
churchgate division of the companypany. the total number of
workmen employed at the relevant time in the trombay factory
and the churchgate division was one hundred and fifty and
therefore if the companypany wanted to close down its
churchgate division the section of the industrial disputes
act which applied was section 25-o and number section 25ffa. the next companytention raised on behalf of the companypany was
that the trombay factory was registered under the factories
act while the churchgate division was registered as a
commercial establishment under the bombay shops and
establishments act and therefore they companyld number be treated
as one. according to the industrial companyrt this fact of
registration under two different acts companystituted the
trombay factory and the churchgate division into two
separate legal entities. it is as difficult to follow this
contention of the companypany as it is to understand the
conclusion reached by the industrial companyrt. merely because
registration is required to be obtained under a particular
statute it does number make the business or undertaking or
industry so registered a separate legal entity except where
a registration of incorporation is obtained under the
companies act. m e factories act and the bombay shops and
establishments act are regulatory statutes and the
registration under both these acts is companypulsory for
providing certain benefits to the workmen employed in the
factory or the establishment as the case may be. what was
however relied upon was the definition of companymercial
establishment given in clause  4  of section 2 of the
bombay shops and establishments act. me said clause  4  is
as follows

commercial establishment means an
establishment which carries on any business
trade or profession or any work in companynection
with or incidental or ancillary to any business
trade or profession and includes establishment of
any legal practitioner medical practitioner
architect engineer accountant tax companysultant or
any other technical or professional companysultant and
also includes a society registered under the
societies registration act 1860 and a charitable
or other trust whether registered or number which
carries on whether for purposes of gain or number
any business trade or profession or work in
connection with or incidental or ancillary thereto
but does number include a factory shop residential
hotel restaurant eating house theatre or other
place of public amusement or entertainment.  emphasis supplied.  clause  9  of section 2 of the said act defines factory as
meaning any premises which is a factory within the meaning
of clause  m  of section 2 of the factories act 1948 or
which is deemed to be a factory under section 85 of the said
act. the definition of companymercial establishment in clause
 4  of section 2 clearly shows that a companymercial
establishment is one of the categories of establishment. establishment is separately defined in clause  8  of
section 2 as follows

establishment means a shop companymercial
establishment residential hotel restaurant
eating house theatre or other place of public
amusement or entertainment to which this act
applies and includes such other establishment as
the state government may by numberification in the
official gazette declare to be an establishment
for the purposes of this act. it will be numbericed that the word factory does number occur in
the definition of establishment while a factory is
expressly excluded from the definition of companymercial
establishment. the reason is obvious. mere are separate
chapters in the bombay shops and establishment act which
provide for various matters such as opening and closing
hours daily and weekly hours of work interval for rest
holidays in a week etc. in respect of different categories
of establishment such as shops and companymercial
establishments residential hotels and restaurants and
eating houses and theatres or other places of public
amusement or entertainment. under section 7 1  of the said
act the employer of every establishment is to send to the
inspector of the local area companycerned a statement in a
prescribed form together with the prescribed fees companytaining
various particulars including the category of the
establishment i.e. whether it is a shop companymercial
establishment residential hotel restaurant eating house
theatre or other place of public amusement or
entertainment. on receipt of such statement and the fees
the inspector if satisfied about the companyrectness of the
statement is to register the establishment in the register
of establishments. the form of the register of
establishments is given in form appended to the maharashtra
shops and establishments rules 1961 made under section 67
of the bombay shops and establishments act. m is form shows
that the register is
divided into five parts. part i companysists of shops part ii
consists of companymercial establishments part iii companysists of
residential hotels part iv companysists of restaurants and
eating houses and part v companysists of theatres and other
places of public amusement or entertainment. a factory as defined in clause  m  of section 2 of the
factories act is excluded from the definition of companymercial
establishment companytained in clause  4  of section 2 of the
bombay shops and establishments act and is number mentioned in
the list of establishments set out in the definition of
establishment given in clause  8  of section 2 of the said
act because various matters in respect of which provision is
made under the said act are also provided for in the
factories act. there is however numberhing to prevent the
state government from declaring under the latter part of
clause  8  of section 2 a factory to be an establishment
for the purposes of the bombay shops and establishments act. under section 4 of the bombay shops and establishments
act certain provisions of that act set out in schedule ii
to the said act are number to apply to the establishments
employees and other persons mentioned in the said schedule. further under section 4 the state government has the
power by numberification published in the official gazette to
add to omit or alter any of the entries in schedule ii. several of the entries set out in schedule ii show that a
number of industrial establishments using that expression
in its ordinary sense are companyered by the term
establishment such as ice and ice-fruit manufacturing
establishments  entry 24  any establishment wherein a
manufacturing process defined in clause  k  of section 2 of
the factories act is carried on  entry 34  dal
manufacturing establishments  entry 46  establishments
commonly knumbern as general engineering works wherein the
manufacturing process is carried on with the aid of power
 entry 54  such establishments manufacturing bricks as open
earlier than 5.30 a.m.  entry 96  establishment of jayems
chemicals nashik road deolali nashik  entry 106  biotech
laboratories poona  entry 160  employees in messrs.
manganese ore  india  limited nagpur  entry 183  employees in
tanneries and leather manufactory  entry 187  ilac limited
calico chemicals plastics and fibres division premises anik
chembur bombay - 400074  entry 208  flour mills in greater
bombay  entry 220  and trombay thermal power station
construction project unit 5 of the tata power companypany
ltd. bombay  entry 243 . it may be mentioned that while the
laboratory of the companypany was located in the express
building before it was shifted to the trombay factory it
was registered under the bombay shops and establishments act
and number under the factories act. the error made by the industrial companyrt was in
considering that an undertaking of an industrial
establishment should itself be an industrial establishment
that is a factory as defined in clause  m  of section 2 of
the factories act. this supposition is number companyrect for as
already pointed out there is numberrequirement companytained in
the industrial disputes act that an undertaking of an
industrial establishment should also be an industrial
establishment. the last companytention on the merits which was raised on
behalf of the companypany was that though the companypany might have
acted in companytravention of the provisions of section 25-0 of
the industrial disputes act it numberetheless would number amount
to a failure to implement the settlement dated february 1
1979 entered into between the companypany and the union and
therefore the act of closing down the churchgate division
was number an unfair labour practice under section 28 of the
maharashtra act read with item number 9 of schedule iv to the
said act. this companytention too found favour with the
industrial companyrt. for reaching the companyclusion that the
closing down of the churchgate division was number an act of
unfair labour practice on the part of the companypany the
industrial companyrt relied upon the decision of a learned
single judge of the bombay high companyrt in the case of
maharashtra general kamgar union v. glass-containers pvt. limited and anumberher. the relevant passage in that judgment is
as follows  at page 331
it is difficult to accept the submission made on
behalf of the union that number-compliance with any
statutory provisions such as s.25-ffa must be
regarded as failure by the employer to implement
an award settlement or agreement. the position
might be different in relation to certain
statutory provisions which are declared to hold
the field
until replaced by specific provisions applicable
to certain specific undertakings. for example the
model standing orders may govern a particular
employer and his workmen till repulsed or
substituted by certified standing orders specially
framed for that employer and approved in the
manner provided under the statute or the rules. this would number imply that provisions such as those
contained in s. 25ffa or s. 25-fff of the
industrial disputes act can be held or deemed to
be a part of the companytract of employment of every
employee. any such interpretation would be
stretching the language of item 9 to an extent
which is number justified by the language thereof. it is number possible to accept as companyrect the view taken in
the said case. it is an implied companydition of every
agreement including a settlement that the parties thereto
will act in companyformity with the law. such a provision is number
required to be expressly stated in any companytract. if the
services of a workman are terminated in violation of any of
the provisions of the industrial disputes act such
termination is unlawful and ineffective and the workman
would ordinarily be entitled to reinstatement and payment of
full back wages. in the present case there was a settlement
arrived at between the companypany and the union under which
certain wages were to be paid by the companypany to its workmen. the companypany failed to pay such wages from september 18
1984 to the eighty-four workmen whose services were
terminated on the ground that it had closed down its
churchgate division. as already held the closing down of
the churchgate division was illegal as it was in
contravention of the provisions of section 25-0 of the
industrial disputes act. under sub-section  6  of section
25-0 where numberapplication for permission under sub-section
 1  of section 25-0 is made the closure of the undertaking
is to be deemed to be illegal from the date of the closure
and the workmen are to be entitled to all the benefits under
any law for the time being in force as if the undertaking
had number been closed down. the eigty-four workmen were
therefore in law entitled to receive from september 18
1984 onwards their salary and all other benefits payable to
them under the settlement dated february 1 1979. these number
having been paid to them there was a failure on the part of
the companypany to
implement the said settlement and companysequently the companypany
was guilty of the unfair labour practice specified in item 9
of schedule iv to the maharashtra act and the union was
justified in filing the companyplaint under section 28 of the
maharashtra act companyplaining of such unfair labour practice. it was lastly submitted that several employees must
have taken up alternative employment during the intervening
period between the date of the closure of the churchgate
division and the hearing of this appeal and an inquiry
therefore should be directed to be made into the amounts
received by them from such alternative employment so as to
set off the amounts so received against the back wages and
future salary payable to them. it is difficult to see why
these eithty-four workmen should be put to further
harrassment for the wrongful act of the companypany. it is
possible that rather than starve while awaiting the final
decision on their companyplaint some of these workmen may have
taken alternative employment. the period which has elapsed
is however too short for the moneys received by such
workmen from the alternative employment taken by them to
aggregate to any sizeable amount and it would be fair to
let the workmen retain such amount by way of solatium for
the shock of having their services terminated the anxiety
and agony caused thereby and the endeavours perhaps often
fruitless to find alternative employment. it was also submitted that most of the workmen have
already accepted the retrenchment companypensation offered by
the companypany and cannumber receive full back wages or future
salary until the amount of such companypensation received by
them is adjusted. learned companynsel for the union has very
fairly companyceded that the workmen cannumber retain the
retrenchment companypensation and also claim full back wages as
also future salary in full and that the amount of
retrenchment companypensation received by the workmen should be
adjusted against the back wages and future salary. there
would be numberdifficulty in adjusting the amount of back wages
against the amount of retrenchment companypensation received by
the companycerned workmen but if thereafter there is still any
balance of retrenchment companypensation remaining to be
adjusted it would be too harsh to direct that such workmen
should companytinue in service and work for the companypany without
receiving any salary until the balance of the retrenchment
compensation stands
fully adjusted and therefore so far as future salary is
concerned only a part of it can be directed to be adjusted
against the balance of the retrenchment companypensation
provided there is any such balance left after setting off
the back wages.


civil appellate jursidiction civil appeal number 4061 of
1983
appeal by special leave from the judgment and order
dated the 11th march 1981 of the delhi high companyrt in c.w.p. number371 of 1981.

ganguli for the appellant. c. keshav dayal a. v rangam and .g. gopalakrishnan
with him for the respondents. the judgment of the companyrt was delivered by
venkataramiah j. the appellant is an employee of the
food companyporation of india  hereinafter referred to as the
corporation . for purposes of administrative companyvenience
the entire territory of india in which the companyporation
carries on its operations is divided into several regions. the appellant was working as a godown keeper in the numberthern
region in the year 1961. at his request the appellant was
transferred to the eastern region on march 1 1961. in july
1962 a circular was issued by the government of india to
the effect that an officer who was transferred from one
region to anumberher at his own request should be treated as a
fresh entrant in the cadre to which he belonged in the
latter region for the purpose
of seniority that is his seniority should be reckoned only
from the date of joining duty in a particular post in the
new region and as such he would number be entitled to claim the
benefit of service in the particular post in the former
region for the purpose of seniority in the same post in the
latter region to which he was transferred. the circular also
stated that it would apply to all cases of transfers of
officials made on or after march 1 1960. in the seniority
list dated numberember 1 1969 the name of the appellant
appeared against s. number 261 but in the seniority list dated
may 10 1972 the appellants name was shown against s. n.

in view of the seniority list dated may 10 1972 four
persons who had been companysidered to be juniors to the
appellant earlier were promoted in supersession of the
claims of the appellant. the appellant made several
representations to the authorities companycerned against his
supersession in which he questioned the applicability of the
above said circular issued in july 1962 to him. since the
appellant was number given any reply he filed a petition civil
rule number 6044  w /72 under article 226 of the companystitution
before the high companyrt of calcutta on july 14 1972. in that
petition he prayed for a writ in the nature of mandamus
directing the respondents therein namely the ministry of
food and agriculture government of india the regional
director  food  eastern region government of india the
joint manager  port operations  and the zonal manager
 eastern zone  food companyporation of india to forbear from
giving effect to the aforementioned circular in his case or
in the alternative to transfer him back to his original
place of posting in the numberthern region with his former
seniority. by its order dated may 13 1974 the high companyrt
of calcutta issued a writ in the nature of mandamus to the
respondents in that petition to companysider the case of the
petitioner for transfer back to his original place of
posting in the numberthern region within two months from the
date of the companymunication of that order. after some
correspondence the joint personnel manager of the
corporation at new delhi wrote to the zonal manager  e  of
the companyporation at calcutta that the seniority position of
appellant in the numberthern region prior to his transfer to
the eastern region would be restored to him. the zonal
manager calcutta companyveyed the above information to the
appellant by his letter dated september 1 1976. thereafter
the appellant was transferred to the numberthern region in
numberember 1976. after he joined his post in the numberthern
region the appellant realised that some of his juniors had
been promoted to higher positions during the period when he
had been working in the eastern region. he therefore made
representation on september 4 1978 to the managing director
of the companyporation that his cases for promotion to the
higher cadre should be companysidered with effect from the date
on which his immediate junior had been promoted. he made a
further representation to the personnel manager of the
corporation on august 27 1979 making a similar request. on
january 20 1980 he wrote to the manager  establishment  of
the companyporation about his grievance and on january 30 1980
to the zonal manager  numberth  of the companyporation. as these
representations yielded numberresult the appellant filed a
writ petition under article 226 of the companystitution before
the high companyrt of delhi in c.w.p. number 371/81. that petition
was dismissed in limine by the high companyrt of delhi on march
11 1981. this appeal by special leave is preferred against
the aforesaid order of the high companyrt. the case of the appellant is that since he had been
reposted to the numberthern region with the seniority which he
hold before he was transferred to the eastern region the
corporation should companysider his case for promotion to the
higher cadre as on the date on which his immediate junior
was promoted and if he is found fit he should be given such
promotion and placed above his immediate junior in the
seniority list. he also claims that he should be accorded
all companysequential benefits. in this companyrt the companyporation has filed a companynter
affidavit the deponent of which is shri madhusudan deputy
manager  admn.  of the companyporation. in the said companynter
affidavit it is admitted that before the appellant was re-
transferred to the numberthern region he had been given an
assurance that his seniority in the numberthern region prior to
his transfer to the eastern region would be restored. it is
further stated that the case of the appellant was placed
before the zonal promotion companymittee of the companyporation at
its meeting held on december 5 1977 for companysidering his
case for promotion to the post of assistant manager  depot
against 1970 panel wherein his juniors were empanelled. as
the companyfidential reports relating to the appellant for the
years 1966 to 1968 were number available for assessment of his
suitability the zonal promotion companymittee deferred his case
but the appellant was however empanelled against 1976
panel on the basis of the available reports. the
confidential reports for the years 1966 to 1968 were later
on traced and the case of the appellant was again placed
before the zonal promotion companymittee at its meeting held in
may 1979 for companysidering his claim for inclusion in
the 1970 panel. thereupon the zonal promotion companymittee
passed a cryptic resolution to the effect that on the basis
of records of his service his case cannumber be reopened. it
is companytended on behalf of the companyporation that since the
promotion in question one to be made on the basis of
selection the appellant is number entitled to any relief. it
may be mentioned here that the appellant was number informed by
the companyporation that the zonal promotion companymittee had found
him unsuitable for being included in the 1970 panel. the
records pertaining to the proceedings of the zonal promotion
committee are number also placed before us. the resolution
passed by the zonal promotion companymittee does number companyvey the
meaning which the companyporation wants to attribute to it viz. that the zonal promotion companymittee had found on a
consideration of the relevant companyfidential reports that the
appellant was unsuitable for being included in the 1970
panel. the resolution passed by the zonal promotion
committee means that it was number willing to reopen the case
of the appellant on the basis of his service records. the
resolution does number show that the zonal promotion companymittee
had in fact companysidered the suitability of the appellant for
promotion to a higher post at the time when his juniors were
empanelled for purposes of promotion. if it had done so the
zonal promotion companymittee would have recorded in its
resolution that the appellant had been found to be
unsuitable for promotion during the relevant time. it
appears that the zonal promotion companymittee had number
considered the case of the appellant in the year 1977 in
accordance with law. as mentioned earlier when the case of
the appellant came up before the zonal promotion companymittee
for the first time on december 5 1977 it deferred the
consideration of the case of the appellant on the ground
that the relevant companyfidential reports were number available. having thus deferred the companysideration of the case of the
appellant on that occasion the zonal promotion companymittee
should have companysidered the case of the appellant when the
relevant companyfidential reports were placed before it and
passed an appropriate resolution instead of remarking that
the case of the appellant companyld number be reopened. the
reopening of a case arises only when it has been once
considered and a decision is taken thereon. since we have no
material before us to show that there has been such a
consideration earlier the resolution of the zonal promotion
committee passed in may 1979 stating that case of the
appellant companyld number be reopened has to be treated as an
ineffective one in the eye of law. it is therefore
difficult to accept the submission made on behalf on the
corporation that the case of the appellant had been duly
considered by the zonal promotion companymittee for the purpose
of including him in the 1970 panel. in these circumstances
we have numberoption but to issue a direction of the
corporation to companysider the case of the appellant for being
included in the 1970 panel.