1. Petitioner is a Public Limited Company which is an industrial establishment satisfying the requirements of S.25-K of the Industrial Disputes Act. Permission sought for by the Company under S.25 O (1) of the Industrial Disputes Act for closure was refused by the Government under sub-section (2). Ext. P-6 is copy of the order dated 17th January 1990. Ext. P-7 review petition was filed under sub-section (5) of S.25 O on 3rd February 1990. Complaining that the petition was not disposed of the petitioners moved O.P. No. 3721 of 1990 for compelling the Government to pass orders on Ext. P-7. The O.P. was allowed by the original of Ext. P-8 judgment. Subsequently, at the instance of the Company itself, the Government passed Ext. P-9 order referring the matter to the Industrial Tribunal. By Ext. P-10 award the Industrial Tribunal rejected the application holding that there are no grounds for reviewing the decision. Thus, permission to close down the establishment stands rejected. Prayers in the O-P. are (1) to strike down S.25 O as unconstitutional, (2) to quash Ext. P-10 award of the Industrial Tribunal, and (3) to direct the State to grant permission for closure.

2. On reference under S.15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985, the Board for Industrial and Financial Reconstruction under Ext. P-1 proceedings declared the Company as a sick unit. Huge recurring loss consequent on non availability of raw materials, increase in wages etc. coupled with the alleged refusal of the Government in giving a helping hand are the reasons in support of the prayer. These reasons were denied and it was alleged that the attempt to close the company is mala fide with ulterior motive. By Ext. P-6 order and Ext. P-10 award the grounds alleged were found unreal, insufficient and mala fide. Petitioners would say that the reasons alleged in Ext. P-6 and P-10 for refusal are not proper. Ext. P-10 is also said to be in excess of the powers of the Industrial Tribunal. S.25O of the Industrial Disputes Act is alleged to be violative of Art.14 and 19(1)(g) of the Constitution. These grounds are also denied.

3. The first question for consideration is whether S.25O is unconstitutional on the ground that it violates Art.14 and 19(1)(g). If that contention is found in favour of the petitioners the other questions may not arise. In order to consider that question certain other factors also may be relevant. In the year 1957, S.25 FF was amended in order to make a provision for payment of compensation to workmen in case of transfer of the undertaking and a further provision was made in S.25-FFF for payment of compensation in cases of closing down of undertakings. When an undertaking is closed down, every workman in continuous service for not less than one year shall be entitled to get notice and compensation in accordance with S.25-F as if the workman has been retrenched. Compensation under S.25-F shall be equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in excess of six months. But the proviso to S.25-FFF (1) says that when the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer the compensation to be paid to the workman under S.25-F shall not exceed his average pay for three months. Explanation to S.25-FFF (1) provides that an undertaking which is closed down by reason merely of (1) financial difficulties including financial loss, or (2) accumulation of undisposed off stocks, or (3) expiry of the period of lease or licence, or (4) exhaustion of the materials when the undertaking is engaged in mining operations, shall not be deemed to have been closed down on account of unavoidable circumstances beyond the control of the employer within the meaning of the proviso. The Explanation has application only in respect of the quantum of compensation. If the undertaking is closed down without permission, the closure shall be deemed to be illegal under S.25 O(6) and the workmen shall be entitled to all the benefits as if the undertaking had not been closed. Thus, there are three different provisions in three different contingencies having bearing on the question of benefits due to the workmen on closure.

4. S.25 O is applicable only to big industrial establishments coming within the ambit of S.25 K But S.25 F, FF, FFA, FFF etc. are applicable to S.25 O also as S.25 A indicates. An employer who intends to close down the establishment must apply in the prescribed manner 90 days in advance stating clearly the reasons and serving copies simultaneously on the representatives or the workmen in the prescribed manner. Government will have to make due enquiries on the application giving reasonable opportunities of being heard to the employer, the workmen and all persons interested in the closure. In considering the application, the Government must have due regard to the genuineness and adequacy of the reasons, interest of the general public and all other relevant factors and reasons will have to be recorded in the order while granting or refusing permission. Copy of the order will have to be communicated to the employer and the workmen. If copy is not so communicated within 60 days from the date of application, permission shall be deemed to have been granted. Government can suo motu or on application review the order or refer the matter to the Industrial Tribunal. The order will have life only for one year. On reference the Tribunal will have to pass award within 30 days. Without the required permission, closure will be illegal and subject to the penalty under S.25-R. In exceptional cases, power is given to the Government to exempt undertakings from the provisions of the section for specific periods. The right of workman to receive compensation under S.25-F is reserved. These are the salient features of S.25 O as amended in 1982 consequent on the decision rendered by the Supreme Court in Excel Wear v. Union of India (AIR 1979 S.C. 25 ). If Explanation to S.25-FF (1) is applicable, reduced compensation alone need be paid.

5. Section 25 O before it was amended by Act 46 of 1982 which came into force in 1984 was in a different form. The constitutional validity of the unamended S.25 O and S.25-R came up for consideration in that decision. It was declared that the unamended section, S.25 O, as a whole and S.25-R in so far as it relates to awarding punishment for infraction of the provisions of S.25-O are constitutionally bad and invalid for violation of Art.19(1)(g). The unamended S.25 O only provided for ninety days notice stating the reasons (without assigning what the reasons are) and said that the Government may if it is satisfied that the reasons are adequate and sufficient (without any guidelines or time limit) or such a closure is prejudicial to the public interest, by order direct the employer not to close down the undertaking. Other provisions are also there.

6. Contention of the petitioners is that all the infirmities in the unamended section as pointed out by the Supreme Court in Excel Wears case (AIR 1979 S. C. 25) for striking it down are there even now and hence the amended section is also violative of Art.19(1)(g). Respondents stoutly denied this fact and said that S.25 O as amended corrected all the infirmities pointed out by the Supreme Court and hence the amended section is perfectly constitutional. A Constitution Bench of the Supreme Court in the decision in Hathising Manufacturing Co. & others v. Union of India (1960 (2) LL.J. 1) upheld S.25FFF (1), the proviso and the Explanation as not violative of Art.14, 19(1)(g) and 20 of the Constitution. That means, when an undertaking is closed down for any reason every workmen having continuous service for not less than one year shall be entitled to notice and compensation as provided in S.25-F and if it is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation under S.25F(b) shall not exceed the average pay for three months and the four conditions in the Explanation by themselves without anything more shall not be deemed to be unavoidable circumstances beyond the control of the employer.

7. After the amendment of S.25-O consequent on the decision in Excel Wears case (AIR 1979 S. C. 25), there was no occasion for the Supreme Court to pronounce on the Constitutional validity of amended S.25 O. Decisions were rendered by various High Courts. A Single Bench of the Karnataka High Court struck down the amended S.25 O as unconstitutional in the decision in Stumpp Scheule & others v. State of Karnataka and others (1985 (2) LL.J. 543). But that decision was reversed in appeal by a Division Bench in Union of India v. Stumpp Scheule & Somappa Ltd. (1989 (2) LL.J. 4) holding that sufficient changes were made in the amended section justifying its validity. But on behalf of the petitioners, it was pointed out that the decision is now pending appeal before the Supreme Court. Another Single Bench of the Allahabad High Court in J. S. Tea & Industries Ltd., Calcutta v. Industrial Tribunal (1), Allahabad (1990 Lab. IC 1411) also struck down S.6-W of the U.P. Industrial Disputes Act which corresponds to S.25 O of the Act in question holding that the Parliament was not able to remove the basis upon which the Supreme Court in Excel Wears case took the view that the old S.25 O imposed excessive and unreasonable restrictions within the meaning of Art.19(6) of the Constitution. The decision said that even under the present S.25 O an employer can be compelled not to close down his undertaking in spite of the fact that both from the point of view of security and finance it will be impossible for him to do so and he can still be compelled to pay minimum wages to the employees even though he is not capable of doing so. The decision went on to say that even now he can be compelled to carry on his business in pain of being completely ruined and eventually annihilated and the Legislature has not given a thought to the via media evolved by the Supreme Court in resolving the conflict between the interest of the employer and the interest of the labour in the event of the closure of an undertaking by providing for a graded compensation or different slabs of compensation to meet different situations. But that decision was rendered mainly on the reasonings given by the Single Bench in 1985 (2) LLJ. 543 without noticing the Division Bench decision in 1989 (2) LLJ 4, which reversed it. Another Single Judge of the Calcutta High Court also in the decision in Maulins of India Ltd. and another v. State of Bengal and others (1989 (2) LL.J. 400) struck down amended S.25 O. That decision is also said to be pending appeal. A Full Bench of the Delhi High Court in the decision in D. C. M. Ltd. v. Union of India (AIR 1989 Delhi 193) upheld the constitutional validity of amended S.25 O and said that in considering the reasonableness of the restrictions imposed by the section one has to bear in mind the directive principles of State policy in furtherance of which it was enacted.

8. AIR 1979 SC 25 [LQ/SC/1978/280] [1978 (2) LLJ. 527] [LQ/SC/1978/280] , which struck down the unamended S.25 O itself, said that the two extreme contentions raised on behalf of the employers and employees cannot be accepted. One cannot be compelled to start a business. That is just like the freedom of speech, freedom to form associations or freedom to acquire or hold property. Under no circumstance, a person could be compelled to speak, to acquire property or to form association. But by imposing a reasonable restriction, he can be compelled not to speak, not to form association or not to acquire or hold property. As held in Cooverjee Bharucha v. Excise Commissioner and another (AIR 1954 S.C. 220), and Narendra Kumar v. Union of India (AIR 1960 S. C. 430), total prohibition of business is possible by putting restrictions which are reasonable within the meaning of Art.19 (6) on the right to carry on business. But, as pointed out in AIR 1960 S. C. 430, the greater the restriction, the more the need for strict scrutiny by the Court. In applying the test of reasonableness, the Court has to consider the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil was sought to be remedied by such law, the ratio of the harm caused to the individual citizens by the proposed remedy and to the beneficial effect reasonably expected to result to the general public. Whether the restriction caused by law is what is more than necessary in the interest of general public is also a matter that has to enter the judicial verdict.

9. Right to close down the business is an integral part of the right to carry it on. At the same time, the right to close down cannot be equated with the right not to start or carry on a business. The extreme proposition canvassed on behalf of the employers was thus rejected. So also, the extreme position put forward on behalf of the labour unions that the right to close down is not an integral part of the right to carry on a business, but it is a right appurtenant to the ownership of the property or that it is not a fundamental right was also rejected. Right to close down was also accepted as a fundamental right embedded in the right to carry on any business guaranteed under Art.19(1)(g). But the right to close down was held to be not an absolute right. It can be restricted, regulated or controlled by law in the interest of the general public. That is the law laid down by the Supreme Court in that decision. In a State owned undertaking, the Government or the Government company is the owner. If they are compelled to close down the undertaking, they may protect labour by several other modes. But in a private sector, the position may be different. But there also even though the business is run for the profit of the employer, it has a bearing on the growth of the national economy. Therefore, it is only proper that the law could provide for measures to prevent reckless, unfair, unjust or mala fide closures.

10. The decision in AIR 1979 S. C. 25 struck down S.25 O not merely on the ground that the restrictions are unreasonable within the meaning of Art.19 (6) but also because the procedural safeguards were not there. S.25 O (2) did not require giving of reasons in the order refusing permission. Even when reasons given are correct, permission should have been refused if they were not considered adequate or sufficient. It was not necessary to give reasons. Government was not enjoined to pass an order under sub-section (2) within the period of 90 days notice. An unreasonable order was possible because of the unreasonableness of the law. There was no provision for review or correction of the order. In the absence of guidelines to the authority granting or refusing permission, it could have whimsically and capriciously refused permission to close down even in a genuine case simply stating that the reasons for closure are "not adequate and sufficient or such closure is prejudicial to the public interest". On these matters, there was no guideline. These and others are the unreasonableness found by the Supreme Court. The requirement of prior permission was on principle accepted as a valid condition precedent to closure provided refusal was on grounds germane within the meaning of Art.19(6).

11. Now, in the amended section, an application has to be filed in the prescribed manner stating in detail the reasons which are clear from the form prescribed and the nature of the informations required as is evident from Central R.76(C) and Form QA. Copies will have to be given to the workmen or their representatives. An enquiry is necessary with opportunities for hearing to the employer, workmen and other persons interested in the closure. Genuineness and adequacy of the reasons in relation to required information, interest of the general public and all other relevant facts should enter the verdict in granting or refusing permission with recorded reasons. It will have to be communicated within sixty days. Failure will lead to the presumption of grant of permission. There is provision for review suo motu or on application, and there is the further provision for referring the matter to adjudication. The award has to come within 30 days. The order granting or refusing permission will have life only for one year. That means, a fresh application is possible after one year. The result of the amended provision is that only by a reasoned order for which proper guidelines are given permission could be either granted or refused. In such a case, as pointed out by the Supreme Court in the Comptroller and Auditor General v. K. S. Jagannathan (AIR 1987 S.C. 537) and Gujarat Steel Tubes Ltd. v. G. S.T. Mazdoor Sabha (1980 (1) LL.J. 137) quoted with approval therein, the aggrieved party could approach the High Court. Under Art.226, the High Court has the power to issue writs or orders or directions where the Government failed to exercise or wrongly or mala fide exercised the discretion. High Court itself can, in appropriate cases, pass orders or give directions which the Government itself could have passed or given even without a remand or direction for that purpose. S.25 O, as it now stands, is not lacking any procedural safeguards to avoid or correct arbitrariness. What is possible is only wrong orders in individual cases which could be corrected by review or interference by High Court or even by a fresh application after the expiry of one year. As held in Maneka Gandhi v. Union of India (AIR 1978 S.C. 597), when power is given to a high body like the Government, chances of misuse are very remote.

12. Now the question for consideration is whether the amended S.25O imposes unreasonable restriction on the fundamental right guaranteed under Art.19(1)(g) or otherwise whether it suffers substantially from the same defect and unreasonableness on the basis of which it was struck down in AIR 1979 SC 25 [LQ/SC/1978/280] . As observed by Their Lordships in 1989 (2) LL.J 4, no employer has a fundamental right to close down an industry unreasonably or for reasons which are mala fide. Closure has to be for just and inevitable reasons as it affects large number of employees, members of the general public, production of the country, etc. Most of the industries were started by availing sufficient concessions and benefits from Government and Governmental instrumentalities and therefore their closures are to be the subject of proper enquiry by the Government. After having taken advantage of several concessions or incentives and facilities offered by the State and after having invited a large number of persons, -to join the industry as employees, the employer cannot choose his own time and terms to close down the industry. A quasi judicial power placed in the Government in that respect under S.25O(2) is definitely justifiable. It could be expected that the power will be reasonably exercised. If not, it could be corrected in individual cases. As observed in AIR 1989 Delhi 193, S.25O, so far as it empowers the Government to refuse permission to an employer to close down his industrial undertaking does not infringe the fundamental rights under Art.14 and 19(1)(g) as it is saved by Art.19(6) by safeguards as well as by directive principles of State policy behind it.

13. The concept of public interest is so wide that it is not possible to define it in a formula governing all situations. The decision in AIR 1979 S. C. 25 itself accepted that proposition. That explains the reasons for absence of specific grounds in S.25 O (1) and (2). Hearing all concerned, would assist the Government to come to a correct and fair conclusion on all aspects in the light of the detailed informations as to whether the reasons are genuine and adequate in a given case considering the interest of the general public and all other relevant factors. In AIR 1979 S. C. 25, the Supreme Court did not make any observation on the scope or effect of S.25 O (1). It is not possible to think that the decision struck down the unamended S.25-O because the restrictions imposed were unreasonable on substantive aspects. After having considered the reasons and conclusions arrived at in the decisions in 1989 (2) LL.J. 4 and AIR 1989 Delhi 193, I do not find any ground to disagree with the opinion that amended S.25 O does not suffer from any constitutional infirmity especially when the order is operative only for a temporary period of one year. The amended provision has sufficiently regulated the balancing factors in order to protect and balance the interest of the employer, workmen and the general public for which straight jacket guidelines are not possible as applicable in all cases. On behalf of the Union of India, counsel represented before me that apart from the provisions of the Act, administrative directions were also given.

14. I am not in a position to agree with the decision in 1989 (2) LL.J. 400 that even now the Government could refuse permission in cases where there are genuine and good reasons for closure. Government will have to assign reasons which are justiciable by this Court under Art.226. The decision in D.C.M. Ltd. v. Lt. Governor, Delhi and others (1989 (2) LL.J. 250), cited on behalf of the petitioners, does not appear to support their case. That decision was concerned only with the correctness of an order passed under S.25 O. The decision said that procedural safeguards of recording reasons are now incorporated in the section and such reasons should not only be intelligible, but should also deal with the substantial points that have been urged. That is the position in relation to the decision in A.C.C. Ltd. & another v. Union of India (1981 (1) LLJ. 599) also. The amended S.25 O is not, therefore, violative of Art.19(1)(g) as the restrictions are reasonable within the limits of Art.19(6). The provision cannot be violative of Art.14 also, because the classification is on a rational basis as between big establishments and small ones having intelligible differentia and reasonable nexus to the object. No arbitrariness is involved in S.25O. It is not, therefore, liable to be struck down.

15. That takes us to the question whether Ext. P-10 is liable to be quashed and the Government directed to grant permission to close down as prayed for. In this connection, a preliminary objection was raised on behalf of respondents 1 to 5 by Advocate Mr. M. Ramachandran. It is said that the original petition is not maintainable. His objection was that after having submitted to the jurisdiction of the authorities under S.25O, petitioners are estopped from now challenging the vires of the provision when they had to suffer adverse decisions. Estoppel, as is well known, is a rule of evidence, which prohibits one party from denying the existence of a fact which he represented as existing and upon such representation, another person has been induced to act to his detriment. The moment the representation made by a party was acted upon by another and he changes position to his detriment, the first party cannot go back on the representation he made. No such contingencies could arise in this case. In the first place, petitioners made it clear that permission was sought subject to their challenge against the constitutional validity of S.25 O. Further, there cannot be any estoppel in challenging statutory or constitutional provision. So also, that question cannot arise when it is found that S.25 O is constitutionally valid. At any rate, there cannot be any question of estoppel in challenging the correctness of Ext. P-10 order. What is challenged is violation of fundamental right, which cannot be surrendered by any admission or concession operating as estoppel.

16. Mr. S. V. Balakrishna Iyer, on behalf of the Union of India, argued that Ext. P-6 order dated 17th January 1990 is valid only for one year and when the original petition was filed on 11th April 1991, that order was not in force. Therefore, according to him, the only course open to the petitioners was to file a fresh application under S.25O. For this reason he said that the original petition is not maintainable. But S.25O(4) says that the finality and binding nature of the order is subject to the provision for review contained In sub-section (5). Ext. P-10 award was passed only on 2nd March 1991. It was, therefore, argued that the original petition is not maintainable for the further reason that Ext. P-10 award alone is challenged and Ext. P-6 order was not challenged. When Ext. P-6 is superseded by Ext. P-10, I do not think there is any necessity for a separate and specific challenge against Ext. P-6. I am, therefore, inclined to hold that the original petition is maintainable.

17. I do not find any force in the contention of the petitioners that the Industrial Tribunal went beyond its power in passing Ext. P-10. What is contemplated under S.25O(5) is not a limited review within the meaning of Order XLVII R.1 of the Code of Civil Procedure. What is intended is a reconsideration of the entire matter, including the facts and law omitted while passing the first order as well as new developments that took place after the original order was passed. That may be the reason why both sides agreed to the incorporation of the oral and documentary evidence in I. D. No. 2 of 1988. Those items of evidence were considered without objection. The object of the provision for review is to do justice between the parties by considering whether the original decision is legal or correct. The question whether such reconsideration is necessary or not is treated as industrial dispute though the reference is only made optional. On reference, Industrial Tribunal is having all the powers of the Government to consider all the relevant questions in order to decide whether the order refusing permission requires reconsideration and whether permission has to be given. Ext. P-10 is evidently one passed with jurisdiction.

18. The wide discretion and powers exercisable by the Industrial Tribunal may not be available to the High Court while exercising the power under Art.226 or the power of superintendence under Art.227. This is in spite of the fact that the High Court is a superior court. Even though the High Court is entitled to scrutinise the orders and awards, it could only be within the well accepted limits. Though the High Court is entitled to quash an award in an appropriate case and remand the matter or even decide the matter itself, the High Court is not entitled to exercise right of an appellate court [Jitendra Singh v. Shri Baidyanath Ayurved Dhawan Ltd. (AIR 1984 SC 976 [LQ/SC/1984/78] )]. The main question for consideration under Art.227 is whether the tribunal acted within its bounds of authority or exceeded the same, though the High Court can interfere when the tribunal committed an error of law apparent on the face of the record or when the findings are perverse in relation to factual or legal questions [J. D. Jain v. Management of S. B. of India (1982 (1) LLJ. 54) [LQ/SC/1981/459] . In a proceeding under Art.226 and 227, the High Court cannot sit in appeal over the findings recorded by a competent tribunal for the purpose of reappraisal of the evidence for itself in order to arrive at an independent conclusion [State of Orissa v. Muralidhar (AIR 1963 SC 404 [LQ/SC/1961/276] )]. Denial of the principles of natural justice is another area justifying interference. Such a question has not arisen in this case. High Court can also interfere and set aside the order if the findings are not supported by any evidence at all. Exercise of jurisdiction depends upon the facts of each individual case subject to the limitations involved. No hard and fast guidelines could be given. The decisions in J. S. Rathor v. Baidyanath Ayurved Bhavan Ltd. (1984 (2) LLJ. 10) [LQ/SC/1984/78] and Kalinga Tubes v. Their Workmen (1969 (1) LLJ. 557) [LQ/SC/1968/158] , cited on behalf of petitioners by Barrister Mr. P. K. Kurien, cannot improve the position in any way. If the order is against the object and spirit of S.25O and the allied provisions of the Industrial Disputes Act, undoubtedly this Court can interfere and in an appropriate case, even direct that permission must be granted.

19. Genuine and adequate reasons occurring in S.25O(2) are of great importance. Reasons will have to be tested in the light of the directive principles of State policy considering the interest of the general public and other relevant factors involved depending upon facts and circumstances. Though unemployment of labour, which is the natural corollary of closing down, cannot be a deciding factor by itself that also could be one of the factors to be considered. As the Supreme Court itself said in AIR 1979 SC 25 [LQ/SC/1978/280] , the right to close down the business is not an absolute right and it can be restricted, regulated or controlled by law in the interest of the general public, which is paramount. Genuineness and reasonableness of the reasons will have to be decided in the context of the nature and incidents of the rights which the employer has. If the situation requiring closure was brought about mala fide and deliberately by the employer, that is also a relevant factor to be considered against him. Financial difficulties and financial loss making the employer unable to continue the business may really be a genuine ground even though that by itself could not be taken to be an unavoidable circumstance beyond the control of the employer entitling him to the concession in the matter of compensation. Financial crisis is possible even in a thriving concern for temporary periods due to various reasons. If it is a genuine ground, incapable of being corrected by employer in spite of the earnest attempt that is a ground for permission for closure even under S.25O, as held in AIR 1979 SC 25 [LQ/SC/1978/280] and 1989 (1) LLJ 599. But, in such a situation, when the financial difficulties and financial losses are contended to be the creation of the employer as a ruse for closing down, he will have to satisfy that he has taken all measures to avert the situation. A losing concern incapable of revival cannot be compelled to be continued.

20. But, in such a situation, the question of bona fides is one of the essential factors. Legislature wanted to be strict in the matter in order to avoid situations of closure which are not unavoidable. That is because public interest may be involved in such closures which are not bona fide. Consequences may be loss of employment, non availability of products for the needs of the public, loss of marketing facilities for the producers of raw materials, danger to the economy of the country and the like. An employer who made sufficient fortune out of the venture may attempt to close it down without making earnest attempts to overcome difficulties. Refusal of permission, in such a situation, cannot be challenged as unreasonable restriction on the right to carry on business. It is upto the Government or the Industrial Tribunal, as the case may be, to probe into all the circumstances in order to arrive at a conclusion regarding the genuineness and adequacy of the reasons for closure tested in the light of the interest of the general public and all other relevant factors mentioned in S.25-O(2).

21. On behalf of the petitioners, it was argued by Mr. G. B. Pai and Mr. Kurien, based on several records, including balance sheet and profit and loss account, that from 1983 onwards, the company is continuously incurring huge financial loss and it is due to factors beyond the control of the management. That is said to be due to non availability of tapioca, which is the main raw material; its increased price, increased cost of labour, inadequacy of power supply, overstaffing, competition from other sources, etc. So also, it was pointed out that the Government did not give a helping hand to get over the situation by giving possible concessions or facilities. Their grievance is that Ext. P-6 order did not consider any of these aspects and refused permission solely on the ground that financial stringency by itself is not a ground justifying permission for closure. But Ext. P-6 is not under challenge in the original petition and Ext. P-10 alone is challenged. Ext. P-10 award considered all these aspects, after considering the oral and documentary evidence on both sides. On the basis of facts and figures, Ext. P-10 came to the conclusion that the above contentions of the management are not acceptable. The Tribunal found that the starch factory, which had its modest beginning in 1954, had grown considerably over the years. It entered new fields of trading activities and built up a sister unit at Hyderabad. Plea of non availability of tapioca was found not bona fide, Tribunal found that what is involved is only refusal of the petitioners to purchase tapioca because of the availability of substitute raw materials elsewhere. Plea of heavy increase in the cost of materials and labour was also not fully accepted. On the basis of the materials available, it was held that any increase on those aspects were more than sufficiently compensated by the increased price of products. Financial crisis was found to be a creation, one of the aspects being huge commissions on sales paid to an agency, of which the Managing Partner was the Chairman of the company. This fact was admitted, but it was contended, on the basis of Ext. M-49, that the said agency was already stopped. But it was found by the Tribunal that the commission, which was only Rs, 28.06 lakhs in 1983 rose upto Rs. 71.53 lakhs in 1986. The industrial tribunal, on the basis) of the evidence before it, found "that boosted sales commission and inflated office expenditure are some of the factors on which the contention of loss was based. That means, tribunal suspected the correctness of the facts and figures supplied by the management.

22. On behalf of respondents 1 to 5 Mr. Ramachandran and on behalf of respondents 6 and 8, Government Pleader Mr. S. Vijayan Nair said that the attempt of the Management to close down the establishment is not due to any bona fide need but only to intimidate the claims of the workmen for better service conditions. On the basis of the evidence on record, the Industrial Tribunal found, prima facie, that there is no basis for this contention also. Admittedly, I. D. No. 2 of 1988 is even now pending. At first, Government referred the demands of the workers alone to the Tribunal. The Company moved for reduction of wages. That was initially not referred. Therefore the petitioners filed an O. P. to compel the Government to refer that aspect also. Now that matter is also pending before the Tribunal in I.D. No. 2 of 1988. Barrister Mr. P. K. Kurien on the basis of the decision in Crown Aluminium Works v. Their Workmen (1958 (1) LLJ 1) said that if the Tribunal is satisfied that a case for reduction in wage structure has been established, it would be open to the Tribunal to acceded to the request of the employer to make appropriate reductions in the , wage structure, subject to the conditions as to time or otherwise the Tribunal may deem fit or expedient to impose. It was in the wake of these facts and circumstances that the move for closure came. I cannot say that the finding of the Tribunal, in these circumstances, is not reasonable. At any rate, the Management could have waited till the industrial dispute was over and the award passed. The move appears to be premature. The argument of Mr. S. Vijayan Nair and Mr. Ramachandran was that on the basis of the boosted figures in the account, the Management wanted to close its Kerala unit in order to stall the claims of the workers and wanted its activities to be confined to other States where cost of labour and materials are cheaper. These are aspects which cannot be considered and decided in a proceeding under Art.226 or 227 because they may require evidence. Any how, the Industrial Tribunal found the claim not bona fide. All the claims including overstaffing, inadequacy of power supply, etc., were found incorrect. There is also a contention that the move for closing down is an unfair labour practice. Petitioners will be at liberty to move again for permission. The claim could again be considered on the merits under the changed circumstances and availability of new materials. The Industrial Tribunal could be directed to expedite I. D. No. 2 of 1988. With the available materials, I think that it may not be possible to find that the reasonings and conclusions in Ext. P-10 are not correct.

23. It is seen from Ext. P-10 that immediately after the Government referred the dispute which is the subject matter of I. D. No. 2 of 1988, the Management filed an O.P. and got it stayed. When the O.P. was disposed of and the Industrial Tribunal was about to pass an award, a petition for permission to close down the undertaking came. The Industrial Tribunal found in Para.17 of Ext. P-10 that the Company which started with Rs. 15 lakhs in 1944 was able to boost its assets to Rs. 650 lakhs in 1978 and that the present move is not bona fide. Any how, the fact remains that the Company, according to the available materials, is running at a loss. Reasons for the loss and possibility of revival are matters on which parties could join issue again if a fresh petition is filed. I do not think that there is any scope for interference with Ext. P-10 also.

The O.P. is dismissed. The petitioners will be at liberty to move a fresh petition under S.25-O (1). There will be a direction to the Industrial Tribunal to dispose of I. D. No. 2 of 1988 as early as possible. No costs.