S. Saghir Ahmad, J.

1. U.P. Chalchitra Nigam Ltd., Lucknow (Opposite Party No. 2) which is a Government Company within the meaning of the Indian Companies Act, was established on September 10, 1975 with the object of carrying on the business of production, distribution and exhibition etc. of the cinematographic films and other allied objects set out in the Memorandum/Articles of Association. Petitioners 1 and 2 are the registered trade unions of the employees of the U.P. Chalchitra Nigam.

2. This petition has been filed by the aforesaid Unions under Article 226 of the Constitution by which Office Orders Nos. 30, 31, 32, 33 and 34 all dated February 26, 1990, have been challenged as they purport to terminate the services of the employees of the Nigam with effect from March 31, 1990. A list of the employees who are the members of the aforesaid Unions has been filed as Annexure-2 while the copies of the termination orders have been filed as Annexure 3 to 7 to the writ petition.

3. It is pleaded in the petition that the members of the petitioners union, whose list, as stated above, is given in Annexure-2 have put in not less than one years uninterrupted service and are workmen within the meaning of Section 2(z) of the U.P. Industrial Disputes Act. It is also claimed that U.P. Chalchitra Nigam (hereinafter referred to as, the Nigam) is an "industry" within the meaning of Section 2(k) of the aforesaid Act.

4. The petitioners, therefore, contend that since the employees of the Nigam had put in more than a years uninterrupted service, their services could not be terminated without first complying with the provisions of Section 6-N of the Act and since the opposite parties while terminating the services of the members of the petitioners union (who shall henceforth be referred to as the "employees") have violated the mandatory provisions, of Section 6-N, (the orders impugned in this petition are liable to be quashed and the employees are entitled to be put back to duty with all the consequential benefits.)

5. The parties have exchanged their affidavits including the supplementary affidavits and with the consent of the parties counsel we proceeded to hear the arguments for finally disposing of the petition.

6. The Advocate General, who has put in appearance on behalf of the Nigam, has raised a preliminary objection as to the maintainability of the petition on the ground that if the orders impugned in the petition have been passed in violation of the provisions of Section 6-N of the Act, the employees may take recourse to the alternative remedy-available to them under the U.P. Industrial Disputes Act, particularly as the relief of reinstatement claimed in this petition cannot be granted in view of the closure of the Industry, e.g. the Cinema Houses, where they were employed.

7. Opposite Party No. 2 has filed a counter affidavit in which it is stated that the Nigam has constructed 42 Cinema Houses in the rural areas of the State but with the introduction and popularity of TV/VCR the business of the Nigam has suffered serious financial losses in spite of its bona fide efforts to run the business profitably:. The year wise loss from the time of its inception is indicated in the counter affidavit as under:

(Rs. lakhs)

1975-76

(year of inception of the Corporation)

0.15

1976-77

1.67

1977-78

2.78

1978-79

1.69

1979-80

8.15

1980-81

7.09

1981-82

10.12

1982-83

36.34

1983-84

66.85

1984-85

11735

1985-86

97.94

1986-87

119.48

1987-88

102.00

1988-89

115.00

Crores

686.61

1989-90

Not available

8. A true and correct relevant extract of the balance sheet for the year 1985-86 has been annexed as Annexure B-1. It is stated that the balance--sheet profit and loss account of the Nigam will itself show that the Nigam has never earned any profit since its inception from the Cinema Houses built and run by it. It is further asserted that the estimated figures for the years 1986-87, 1987-88 and 1988-89 show that there was no scope for the Nigam to make any profit whatsoever and that it was still running in loss.

9. It is further indicated in the counter affidavit that the members of the petitioners union are either Booking Clerks or Operators, Gate Keepers, Chowkidars, Sweepers or Cinema Managers, who, as part of the establishment of the Nigam had themselves been running the Cinema Houses and the allegations made in the petition that the Nigam did not part with the management and kept the petitioners away, was wrong. It is further indicated that the services of the workmen were terminated strictly in accordance with the provisions of the Act specially those of Section 6-N which is faithfully complied with.

10. So far as the contention of the learned counsel for the petitioner that "termination" of services of the employees in the instant case would amount to "retrenchment" within the meaning of the U.P. Industrial Disputes Act is concerned, we may immediately observe that there can be no dispute that the termination, in the instant case, would amount to "retrenchment" which word incidentally has been considered, discussed and interpreted by the Supreme Court in a large number of cases in the light of the definition contained in Section 2(oo) of the Central Act which is in parimateria with Section 2(s) of the U.P. Act.

11. The Industrial Disputes Act, 1947, as originally enacted, did not contain the definition of "retrenchment" nor was this word defined in the earlier statute, namely, Trade Disputes Act, 1929 which was repealed by the Industrial Disputes Act. The definition was introduced in the Act for the first time by Industrial Disputes (Amendment) Act, 1953.

"Retrenchment has been defined in Clause (00) of Section 2 of the Industrial Disputes Act as under:

"(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include:-

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

(c) termination of the service of a workman on the ground of continued ill-health."

Its definition in the U.P. Act, as contained in Section 2(s), is as under:

"(s) Retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include: -

(i) voluntary retirement of the workman; or

(ii) retirement of the workmen on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf."

There are two parts of the definition. While the first part defines "retrenchment", the second part excludes certain termination of service from the scope of retrenchment.

12. The words "termination by the employer of the service of a workman for any reason whatsoever" are important and they have to be understood in their true perspective before elucidating the definition of retrenchment.

13. In Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union the Supreme Court considered the ordinary meaning of the words "retrenchment" and observed that:

"retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff or the labour force is discharged as 0 and the termination of services of all the workmen as a result of closure of the business cannot, therefore, be properly described as retrenchment...... Retrenchment means in ordinary parlance discharge of the surplus, it cannot include discharge on closure of business".

In this case the Supreme Court had not considered the definition of "retrenchment" as introduced in the Act by amendment. The statutory definition came to be considered by the Supreme Court for the first time in Barsi Light Railway Co. Ltd. v. K.N. Joglekar 1957 I LLJ 243 SC in which the Supreme Court observed as under:

"What after all is the meaning of the expression for any reason whatsoever When a portion of the Staff or Labour Force is discharged as surplusage in a running or continuing business, the termination of service which follows may be due to a variety of reasons, e.g.888 for economy, rationalisation in industry, installation of a new labour saving machinery, etc. The legislature in using the expression "any reason whatsoever" says in effect: It does not matter why you are discharging the surplus; if the other requirements of the definition are fulfilled then it is retrenchment.......... For the reasons given above, we hold.......... that, retrenchment as defined in Section 2(oo) and as used in Section 25-F has no wider meaning that the ordinary, accepted connotation of the word : it means the discharge of surplus labour or staff by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and it has no application where the services of all workmen have been terminated by the employer on a real and bona fide closure of business or............ where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer........ On our interpretation, in no case is there any retrenchment, unless there is discharge of surplus labour or staff in a continuing or running industry."

14. After the above decision, the Legislature amended the Act by Act No. XVIII of 1957 by substituting Section 25-FF and 25F for the previous Section 25F but the definition of "retrenchment" was untouched.

15. In Anakappala Co-operative Agriculture and Industrial Society v. Its Workmen: the Supreme Court affirming its view in Barsi Light Railway Co. Ltd, v. K.N. Joglekar (supra) held that retrenchment necessarily contemplated the termination of the service on the ground that the employee has become surplus.

16. But in its subsequent decision, the Supreme Court has not strictly adhered to the view expressed in above cases. In Dig-wadih Colliery v. Their Workmen the termination of the service of a workman who had worked for more than 240 days was held to amount to "retrenchment". In Management of Willcox Buckwell (India) Ltd. v. Jagannath : 1974 Lab IC 706 the termination of the services of a temporary employee on the ground of his becoming surplus was held to amount to "retrenchment". In Delhi Cloth and General Mills Co. Ltd. v. Shambhu Mukherjee where the name of the workman was struck off, the Supreme Court held that it would constitute "retrenchment".

17. In State of Punjab v. Labour Court, Jullundur , the Supreme Court, while dealing with the case of superannuation, observed that :

"It is immaterial that termination is occasioned by the need to discharge surplus labour".

Deviating further from the rule laid down in Barsi Light Railway Co. (surpa), the Supreme Court in State Bank of India v. N.Sundramoney held that the termination of the service of a temporary workman engaged for the limited number of days would be retrenchment as the Supreme Court was of the opinion that the words "for any reason whatsoever" were "very wide and almost admit of no exception .

18. The Supreme Court went a step further in Hindustan Steel Ltd. v. State of Orissa and held that the termination of service by effect of time in terms of the agreement between the parties would amount to retrenchment. The Court was of the opinion that giving full effect to the words "for any reason whatsoever" would be consistent with the scope and purpose of Section 25F of the Act.

19. These decisions were rendered prior to the amendment of the definition of "retrenchment" by insertion of new Clause (bb) by Act No. 49 of 1984 with effect from April 18, 1984.

20. Other relevant decisions of the Supreme Court are Santosh Gupta v. State Bank of Patiala Mohan Lal v. Management of Bharat Electronics Ltd. L. Robert D. Souza v. Executive Engineer, Southern Railway and Gammon India Ltd. v. Niranjan Dass .

21. It will be useful at this stage to refer to a few lines of the Supreme Court decision in Gammon India Ltd. v. Niranjan Dass (supra)

"The recitals and averments in the notice leave no room for doubt that the service of the respondent was terminated for the reason that on account of recession and reduction in the volume of work of the company, respondent has become surplus. Even apart from this, the termination of service for the reasons mentioned in the notice is not covered by any of the Clauses (a), (b) and (c) of Section 2(oo) which defines retrenchment and it is by now well settled that where the termination of service does not fall within any of the excluded categories, the termination would be ipso facto retrenchment. It was not even attempted to be urged that the case of the respondent would fall in any of the excluded categories."

22. In the instant case, the services of the employees of Chalchitra Nigam are being terminated on account of the closure of the Cinema Houses where they were employed. In view of the principles laid down by the Supreme Court in the cases referred to above and particularly in view of the fact that it is not claimed by the opposite parties that the termination of the services of the employees would be covered by the exceptions indicated in Clauses (i) and (ii) of Section 2(s) of the U.P. Act, we are positively of the opinion that termination amounts to their retrenchment.

23. Learned counsel for the petitioner contended that retrenchment compensation was not paid to the employees at the time of their retrenchment arid, therefore, the order was in violation of the provisions of Section 6-N of the U.P. Industrial Disputes Act. Section 6-N of the U.P. Act provides as under:

"6-N. No workmen employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until:-

(a) the workman has been given one months notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice wages : for the period of the notice.

Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay for every completed year of service or any part thereof in excess of six months, and

(c) notice in the prescribed manner is served on the State Government."

24. In view of the provisions of Section 6-N extracted above, before a workman could be retrenched, he has to be given one months notice in writing indicating the reasons for retrenchment as also, at the time of retrenchment, compensation equivalent to 15 days average pay for every completed year of service or any part thereof in excess of six months. Further, the notice in the prescribed manner is to be served on the State Government.

25. Learned counsel for the petitioner contended that once it is found that the termination of the services of the employees, in the instant case, amounts to retrenchment, the writ petition, if it is further found that the retrenchment compensation was not paid, deserves to be allowed by this Court without requiring the employees to approach the Labour Court and avail of the alternative remedy. He placed reliance on an unreported decision of the Supreme Court in Civil Appeal No. 4077 of 1988 decided on November 17, 1988, which, however, is of no avail to the petitioner, as the question whether or not the appellant in that case had the alternative remedy available to them and that their claim was liable to be dismissed on that ground was left open by the Supreme Court and was not decided.

26. Learned counsel for the petitioner referred to us a decision of the Divisional Bench of this Court in Naresh Chandra Srivastava v. Scooters India (Ltd.) 1987 (54) FLR 22 in which the relief of reinstatement was allowed and the petition was not dismissed on the ground of availability of the alternative remedy under the Industrial Disputes Act. That was a case where the writ petition itself was pending for quite a long time in this Court. In the instant case, however, the matter is at its threshold.

27. Learned counsel also referred to the decision of this Court in Nathaniel Masih v. U.P. Scheduled Caste Finance and Development Corporationin support of his contention that once it is found that termination was in violation of Section 25F of the Industrial Disputes Act or Section 6-N of the U.P. Act, the writ petition is to be entertained by this Court and termination orders are to be quashed.

28. Whether or not the termination orders in the instant case are liable to be quashed depends upon the findings whether or not the provisions of Section 6-N were complied with.

29. On the question of payment of retrenchment compensation itself, there is serious dispute between the parties whether or not it was paid to the employees whose services are sought to be terminated by the impugned notices.

30. In Paras 3 (iii), 3 (iv) and 3 (v) opposite parties state as under:

"3 (iii). That the concerned employees have been given one months notice in writing indicating reasons for retrenchment. The employees refused to accept the salary for the notice and the same has been dispatched to the petitioners on March 31, 1990 before the expiry of the notice period.

(iv) That the payment of retrenchment compensation has not been accepted by the persons whom the petitioners claim to represent and the same has been sent by registered post before the expiry of notice period. The true copy of the letter dated March 30, 1990 along with which the two cheques for the amount equivalent to retrenchment compensation and notice pay has been sent by registered post is being annexed as Annexure B-2 to this counter-affidavit.

(v) That the notice as required under Section 6-N of U.P. Industrial Disputes Act, 1947, has also been served on the State Government by registered post and the same has been duly received by the Government. The true copy of the notice dated February 24, 1990 is being annexed as Annexure B-3 to this affidavit.

31. The above statement of facts was seriously disputed on behalf of the employees in Para 7 of the rejoinder affidavit in which it was, inter alia, stated as under:

"It is surprise (surprising) that a Public Sector Undertaking like the Opposite Party No. 2 has tried to mislead this Honble Court by making an unequivocal statement regarding the payment to be made. It is submitted that the payment-of the amount which was incumbent upon the Opposite Party No. 2 ought to have been made before March 31, 1990 that is the last date of the notice as contained in Annexures 3 to 7 to the writ petition. The petitioners filed the Writ Petition on March 26, 1990 and this Honble Court was pleased to pass an interim order on March 29, 1990 and after the Opposite Party No. 2 derived the knowledge about the order passed by this Honble Court have sent cheques when there were no money in their account in the UCO Bank, Naka Hindola Branch, Lucknow and due to which the cheques could not be encashed which were submitted for encashment as will be evident from the photostat copies of the cheques and the documents of the bank which are being filed as Annexure Nos. 5 to 10 to this rejoinder affidavit which make it clear beyond any doubt that no payment as required under Section 6-N was made to the members of the petitioners before March 31, 1990. Thus there was no compliance of Section 6-N. Merely dispatching of cheques without requisite cash balance in the bank is nothing short of playing fraud. It is nothing but a futile attempt to put up a sham compliance of the provisions of Section 6-N which is most unbecoming for a Public Sector Organisation like the Opposite Party No. 2 and can in the least be termed as indulging in unfair labour practice."

32. In Para 8 of the rejoinder affidavit in which Paras 3 (iii) and 3 (iv) of the counter affidavit have been replied, the petitioners union stated that Opposite Party No. 2 merely tried to put up a show of compliance of Section 6-N by fraudulently sending the cheques without any corresponding cash balance in the Bank. In this connection, they invited the attention of the Court to the documents filed as Annexures 5 to 10 to the rejoinder affidavit. In the supplementary affidavit dated 6.4.1990 the petitioners, inter alia, stated as under:

"2. That the members of the petitioners whose list has been annexed in the writ petition had gone to collect the salary and other dues on 28.3.1990 from the office of the Opposite Party Nos. 2 and 3. When they found that the office was closed and locked due to which they could not collect and get their dues in spite of awaiting there for several hours.

3. That it is not correct to state that the members of the petitioners refused to accept their salary but they were not paid on 2.8.3.1990 and on subsequent days upto the date of expiry of three month of the retrenchment as contained in Annexure Nos. 3 to 7 to the writ petition.

4. That a first information report giving information about the false representation and refusal to pay has been lodged on behalf of the petitioners on 28.3.1990, a photostat copy of which is being annexed as Annexure No. 9 to the supplementary affidavit.

5. That the Opposite Party Nos. 2 and 3 have committed offence under Section 138 of the Banking Public Financial Institutions and Negotiable Instrument Laws (Amendment) Act, 1981, Act No. 66 of 1988 as the cheques issued by them were not encashed substantiates the contentions of the petitioners that Section 6-N of the U.P. Industrial Disputes Act was not complied with."

33. The opposite parties have filed a supplementary counter affidavit dated 9.4.1990 in which it has been, inter alia, stated that the members of the petitioner did not co-operate and created obstructions and prevented the officers of the Nigam to enter into the premises of the Head Office situate at 1, Gokhle Marg, Lucknow. In view of the situation created by the members of the petitioners and reports of likelihood of violence, the opposite parties, it is pleaded, informed the Secretary, Institutional Finance, U.P. Government, who in turn requested the District Magistrate, Lucknow "in writing to provide police protection so that the disbursement of cheques on March 29, could be ensured. The opposite parties have pleaded that it was wrong and incorrect that the office of the Nigam was closed and locked at the instance of the management. The members of the petitioners themselves, it is further pleaded, did not permit the officers of the Nigam to perform their duties and functions in the office and prevented them from entering into the office on 28.3.1990. It is further pleaded that on 29.3.1990, under police protection, more than 150 cheques were issued to various members of the petitioners towards their back wages which were received by them but none of. them were willing to accept, rather they refused to accept, the cheques for the pay for the period of notice and retrenchment compensation. This exercise was repeated on 30.3.1990 when about 100 cheques were issued to various other members of the petitioners towards their back wages which were received by them but none of them was willing to accept the cheques for the pay for the period of notice and cheques for the retrenchment compensation. On 31. 3. 1990 also 50 cheques were issued to the members of the petitioners towards their back wages but they did not receive the cheques for their salary for the notice period and cheques for the retrenchment compensation. The opposite parties have further pleaded that since the pay for the period of notice and retrenchment compensation had to be paid by March 1, 1990, and none of the members of the petitioners to whom the two cheques, one for the amount equivalent to their pay for the period of notice and the other for the retrenchment compensation, were offered, had accepted the said cheques they were sent to them by registered post on 31.3.1990.

34. The opposite parties have also explained in the supplementary counter affidavit the circumstances under "which the petitioners documents (Annexures 5 to 10 to the rejoinder affidavit) were issued. It will be useful in this connection to reproduce some portion of the supplementary counter affidavit as under:

"7(iii). That the rejoinder affidavit filed on behalf of the petitioner Annexures 5 to 10 have been annexed perhaps to show that the provisions of Section 6-N of the Act have been violated on account of non-payment or non-encashment of cheques in respect of notice pay or retrenchment compensation. Annexures 5 and 10 which are cheques in favour of Servashri Chhote Lal a member of the petitioner and Sri Om Prakash Vishwakarma a Jr. Engineer, who is, not a member of the petitioner are cheques for the arrears of the salary and are not cheques for notice pay and retrenchment compensation.

7(iv). That since Sri Chhote Lal had refused to accept cheques for notice pay and retrenchment compensation and there being no other alternative, Cheque No. 722417 dated 27.3.1990 for a Sum of Rs. 588/- as notice pay and Cheque No. 724057 dated 27.3.1990 for a sum of Rs. 3 ,265/- as retrenchment compensation were sent to Sri Chhote Lal by registered post on 31.3.1990.

7(v). That Annexure 6 to the rejoinder affidavit appears to be a copy of the pay-in-slip and a perusal of the same would show that Sri Chhote Lal had opened a new savings bank account in the bank.

7(vi). That Annexure 7 to the rejoinder affidavit does not in any manner indicate that the cheque had been dishonoured but Sri Chhote Lal was requested to present the cheque again and he could have done so the same day as the cheques of other employees over a sum of Rs. 1.22 lakhs were paid by the same bank on 31.3.1990.

8(i) That Ram Avtar Gupta had received Cheque No. 721628 dated 27.3.1990 for Rs. 2,491.20 as arrears of pay on 29.3.1990 and another Cheque No. 722994 dated 27.3.1990 for Rs. 600.10 as arrears of D.A. and Bonus on 29.3.1990 but did not accept the cheques for notice pay and retrenchment compensation.

8(ii) That a perusal of Annexures 8 and 9 to the rejoinder affidavit do not in any manner indicate that the payments towards the cheques were refused but Sri Ram Avtar Gupta was requested to present the cheque again which he could nave done the same day and could have received the payment as the bank had made payments over 1.22. lakhs to the employees of the Nigam on 31.3.1990."

35. With regard to the availability of finances in the account of the Nigam in the United Commercial Bank, Naka Hindola Branch, Lucknow, the opposite parties state as under:

"11(i). That the State Government by the G.O. dated 26.3. 1990 decided to sanction the loan of Rs. 2.07 crores (for) payment of notice pay and retrenchment compensation to the members of the petitioner and also for the purposes mentioned therein, a copy of the said G.O. has been annexed as Annexure B-4 to the deponent counter affidavit dated 1.4.1990 and after receipt of Government Cheque No. 34422 dated 29.3.1990 for Rs. 2.07 crores drawn on State Bank of India, Jawahar Bhawan Branch was deposited the same day in the Nigams current account at UCO Bank, Naka Hindola Branch, Lucknow.

11 (ii) That according to certificate issued by the UCO Bank the credit balance in the current account of the Nigam was over Rs. 2 crores and Rs. 1.22 lakhs had been debited in the current account of the Nigam on 31.3.1990. It is further stated that members of the petitioner had received by 31.3.1990 over Rs. 1.22 lacs towards the arrears of their wages."

36. So far as payment of an amount by cheque is concerned, it would be deemed to have been made on the date on which the cheque is substantially encashed and appropriated by the payee vide Industrial Chemicals Ltd. v. Labour Court, Madras : 1977 (II) LLJ 137.

37. Mr. Advocate General also brought to our notice a decision of the Supreme Court in Indian Oxygen Ltd. v. Narayan Bhoumick 1968 (17) FLR 214 in which even an offer of retrenchment compensation was held to constitute sufficient compliance of the provisions of the Act. In National Iron & Steel Co. Ltd. v. IIIrd Industrial Tribunalit was held that an unconditional offer or tender of payment, preceding retrenchment, will be treated to be equivalent to payment.

38. It may be pointed out that the words "has been paid" have been used in the Proviso to Section 33 as also in Section 25F and, therefore, the Advocate General referred to us the cases of Straw Board Manufacturing Co. Ltd. v. Govind and Delhi Transport Undertaking v. Industrial Tribunal, Delhi . In the latter case, the Supreme Court clarified that the law does not mean that the wages for one month should have been actually paid because in many cases the employer could only tender the amount but could not force the employee to receive the payment before the retrenchment could be effected.

39. Learned Advocate General also referred to us to a decision of Swadesh Press v. State of U.P. and Ors 1980(40) FLR 27, to show that the employees whose services were terminated on August 6, 1972 which was Sunday, were asked to come and collect the compensation etc. on the very next next day, i.e. August 7, 1978, the termination or retrenchment would not be bad merely because the employee was asked to come the next day to collect the retrenchment compensation etc,

40. Referring to the supplementary counter affidavit dated April 9, 1990, the Advocate General contended that the employees themselves have tried to dodge the acceptance of compensation with a view to invalidate the termination of their services on the ground that retrenchment compensation was not paid.

41. It will thus be seen that there is serious dispute between the parties as to the offer or retrenchment compensation and its actual payment as also on the question of availability of sufficient funds in the bank on which cheques were drawn in favour of the employees who have also questioned the bona fides of the opposite parties in ordering closure of the Cinema Houses in violation of the provisions of Section 6-W of the Act regarding which it was pointed out by the Advocate General that this Court in Jay. Shree Tea & industries Ltd, v. Industrial Tribunal (I) Allahabad 1990 I CLR 790 and other connected petitions, decided on March 28, 1990, has held the provisions to be ultra vires the Constitution. The question which, therefore, arises is whether or not the questions of facts be tried here or left to be considered and decided by the appropriate labour or industrial court under the Act on a reference of industrial dispute being made to it by the State Government.

42. Learned Advocate General brought to our notice certain decisions of this Court as also of the Supreme Court that in a situation of this nature where there was serious dispute on several questions of fact the matter should better be left to be decided by the Labour Court and not by the High Court in its writ jurisdiction.

43. A Division Bench of this Court in Divisional Engineer, Northern Railway, Lucknow v.Durgesh Kumar Special Appeal No. 29 of 1975 decided on April 27, 1976 held that since the right which was sought to be enforced by the petitioner, namely, violation of the provisions of Section 25F was a right created under the Industrial Disputes Act, the remedy for its enforcement was by way of raising an industrial dispute which the appropriate government has power to refer under Section 10 of the Act to the Labour Court or Tribunal. This decision has since been followed by another Division Bench of this Court in Union of India v. Kali Charan 1978 (37) FLR 232 and by a Single Judge in I.E.L. Employees Union, Kanpur v. Indian Explosives Ltd. 1982 L.I.C. 1116 Another Division Bench of this Court in a recent decision in Rakesh Kumar v. Uptrol India Ltd. 1989 (59) FLR 244, has followed the decision of this Court in Union of India v. Kali Charan (supra) and dismissed the petition on the ground of alternative remedy being available under the Act.

44. Mr. Advocate General also placed reliance on the decision of the Supreme Court in Bihar Rajya Vidyut Parishad Field Kamgar Union v. State of Bihar 1987 Lab IC 1606 in support of his contention that the petition has to be dismissed on account of the alternative remedy available to the petitioner under the Industrial Disputes Act. He also referred to the decision of the Ra-jasthan High Court (Jaipur Bench) - in Tej Bhan, Singh v. State of Rajasthan 1982 L.I.C. (N.O.C.) 12, wherein it was held that the question whether the amount of retrenchment compensation payable to workmen was kept ready for payment on the date of retrenchment and whether the workmen deliberately avoided to take it on that date cannot be decided by a writ court and that the remedy would lie before the Labour Court under the Industrial Disputes Act,

45. Mr. Advocate General also referred to the decision of Shiv Pal Singh v. Registrar, Co-operative Societies and Ors 1983 UPLBEC 456, wherein also it was held that the right under Chapter V-A. of the Industrial Disputes Act which contains Section 25F can be enforced either under Section 33C or by raising an Industrial Dispute.

46. The Supreme Court speaking through Krishna Iyer, J. in Rohtas Industries Ltd. v. Rohta Industries Staff Union laid down as under:

"But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a China Shop. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and the High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the station or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered."

47. The aforesaid Supreme Court decisions have been followed by a Full Bench of the Patna High Court in Dinesh Prasad and Ors. v State of Bihar and Ors. : A.I.R. 1986 Pat. 112, and it has been held that the rights created under the Act can be enforced only under the Act for which Section 10 of the Industrial Disputes Act provides an adequate and efficacious legal remedy by way of reference made by the State Government to the Labour Court for settling the industrial dispute.

48. It was at this stage that the counsel for the petitioner contended that even the questions of facts can be decided by this Court in a writ petition and relied upon the decisions in Century Spinning & Manufacturing Co. Ltd. and Anr. v. The Ulhas-nagar Municipal Council and AnrBabubhai Muljibhai Patel v. Nandlal Khodidas Barot and Ors. : AIR 1974 S.C. 2105 and Jyoti Prokash Miner v Hon. Mr. Justice U.K. Bose Chief Justice of High Court : AIR 1963 Cal. 483 [LQ/CalHC/1963/42] .

49. We are not inclined to agree with the learned counsel for the petitioner, as the principles laid down in the aforesaid decisions will not be applicable in the present case in view of the further submissions of the Advocate General, which we shall presently notice.

50. The Advocate General has contended that notwithstanding that the orders impugned in this petition are void ab initio or illegal, they having not been passed in conformity with the provisions of Section 6-N of the U.P. Act, there are a number of exceptional circumstances which would justify the matter to be investigated by the Labour Court, particularly as it would be inappropriate in the instant case to direct reinstatement of the workmen on the posts held by them with back wages.

51. The Advocate General has drawn our attention to the decision of the Supreme Court in Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court wherein the Supreme Court , after taking into consideration the difference between the "orders void ab initio" or orders which were merely "invalid and inoperative" and after considering the question whether the reinstatement is to be ordered in a given case observed as under:

"We do not propose to refer to the cases arising under Sections 33 and 33A of the Industrial Disputes Act or to cases arising out of references under Sections 10 and 10A of the Industrial Disputes Act. Nor do we propose to engage ourselves in the unfruitful task of answering the question whether the termination of the services of a workman in violation of the provisions of Section 25F is void ab initio or merely invalid and inoperative, even if it is possible to discover some razors edge distinction between the latin void ab inition and the Anglo Saxon invalid and inoperative. Sematic Luxuries are misplaced in the interpretation of bread and butter statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions. Void ab initio, invalid and inoperative or call it what you will, the workmen and the employer are primarily concerned with the consequence of striking down the order of termination of the services of the workmen. Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full back wages when that would place an impossible burden on the employer. In such and other exceptional cases the Court may mould the relief."

52. It may be pointed out that in the above decision the Supreme Court had taken into consideration several cases including Santosh Gupta v. Stage of Bank of Patiala 1980 I LLJ 72 (SC)Hindustan Steel Ltd. v. The Presiding Officer, Labour Court, Orissa Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal, Haryana Swadesamiran Ltd. Madras v. their Workmen I960 I LLJ 504 which the Supreme Court itself had granted the relief of reinstatement on the finding that the order had been passed in violation of the provisions of Section 25F of the Act.

53. The Supreme Court also considered its own decision in State Bank of India v. N. Sundramoney to which a reference has already been made in the earlier part of this judgment, in which the Supreme Court itself on a finding that the retrenchment was in violation of Section 25F, moulded the relief and provided as under:

"What follows Had the State Bank known the law and acted on it, half-a-months pay would have concluded the story. But that did not happen. And now, some years have passed and the Bank has to pay for no service rendered. Even so, hard cases cannot make bad law. Reinstatement is the necessary relief that follows. At what point In the particular facts and circumstances of this case, the respondent shall be put back where he left off, but his new salary will be what he would draw were he to be appointed in the same post today de novo. As for benefits if any, flowing from service he will be ranked below all permanent employees in that cadre and will be deemed to be a temporary hand upto now...... Not that we are laying down any general proposition of law, but make this direction in the special circumstances of the case, As for the respondents emoluments, he will have to pursue other remedies, if any."

54. On the basis of the above decision, learned Advocate General contended that since in the instant case, the Nigam was running at a loss of six crores and odd and that the Cinema Houses have been closed and that the Nigam is in serious financial doldrums, the petitioners are not entitled to the relief of reinstatement and that the question whether the members of the petitioners union are entitled to be granted the relief of reinstatement or mere compensation, may better be left to be considered by the Industrial Tribunal as was done by Honble O. Chinnappa Reddy, J. In Sri Rameshwar Das and Ors. v. State of Haryana and Ors where also the industry was closed but the matter was left to be decided by the Industrial Tribunal or Court. We agree.

55. Learned counsel for the petitioner contended that it was within the exclusive jurisdiction of the State Government to refer or not to refer the industrial dispute to the Labour Court or Tribunal and, therefore^ the government by postponing to refer the matter or making no reference at all would defeat the right of the employees to agitate their grievances before the appropriate authority.

56. It is no doubt true that a reference of industrial dispute can be made only by the appropriate government under Section 10 of the Act but if the government refuses to make a reference, the Court can intervene in the matter and issue mandamus to the State Government to make a reference of the industrial dispute to the appropriate court or tribunal constituted under the Act see Sankari Cement Alai Thozhialar Munnetra Sangam, Tamil Nadu and Anr. and V. Veerarajan and Ors. v. Government of Tamil Nadu and Ors

57. In view of the above, we are of the opinion that where there is a clear violation of the provisions of Section 25F of the Industrial Disputes Act or equivalent provision of Section 6-N of the U.P. Act, and nothing further is to be investigated, the Court will proceed to decide the question itself and entertain the petition. But where, as in the instant case, there is serious dispute on vital questions of fact including whether or not retrenchment compensation was paid at the time of retrenchment and whether or not the industry was running at a loss and the management had bona fide decided to close down the industry and there were other exceptional circumstances which had to be investigated, the workmen would better be left to invoke the provisions of Section 10 of the Industrial Disputes Act and seek a reference of the dispute to the Industrial Court or Tribunal.

58. The matter does not end here. Irrespective of the question of jurisdiction raised by the Advocate General which has already been considered by us, the petition can be disposed of on another point.

59. Relying upon the decision of the Supreme Court in Workmen of Rohtas Industries Ltd. v. Rohtas industries Ltd. : A.I.R. 1990 S.C. 481, learned counsel for the petitioner, Sri Robin Mitra, contended that the industry, namely, the Cinema Houses should not be allowed to be closed down, as it would result in immediate denial of livelihood to more than 300 families which would not be in consonance with the- concept of social justice as available under the Constitution. He contended that as in the case of M/s. Rohtas Industries Ltd. (supra), so also in this case, there should be a direction for the revival of the industry.

60. It may be stated that in the case of M/s. Rohtas Industries Ltd. (supra), there were about 10,000 workmen who had lost their jobs consequent on the closure of the industrial unit. The industry was lying closed for about five years and it was in this background that the Supreme Court observed as under:

"This Court cannot lose sight of the fact that living to about 10,000 families has been denied for over five years and apart from national loss, the workmen have been put to serious jeopardy. In these circumstances, we are satisfied that it is of paramount importance that the Company in respect of the viable units should be revived and allowed to come into production."

61. We would not allow ourselves to be swayed away by the consideration that in M/s. Rohtas Industries Ltd. (supra) there were 10,000 workmen who were rendered jobless while in the present case the number of the employees who are being retrenched is much too small, as the sufferings arising out of joblessness are akin. If one person is rendered jobless, he would suffer the same misfortune as would be suffered by more than one. Without going further into the philosophy of human sufferings caused on account of unemployment, we would come to an alternative situation where the employees can be helped without requiring opposite parties to revive the industry so as to deny them their "right to close down the industry."

62. It has been brought to our notice by Sri Robin Mitra, counsel for the petitioner, that the Nigam itself in its resolution dated April 10, 1989 had decided to absorb the employees against alternative available jobs or posts which was not done and the opposite parties have proceeded straightway to terminate the services in violation of the provisions of the Act. This position, namely that there was a resolution for absorption, is not disputed by the learned Advocate General, who also brought to our notice, and we must say, fairly, that the Government itself by its order dated April 5, 1990 had issued directions to all the District Magistrates for ensuring compliance of the earlier Government decision for the absorption of the employees of the Nigam.

63. The opposite parties themselves having resolved to provide alternative jobs to the employees, they cannot wriggle out of their resolution and must be bound down to what they profess so as to give effect to the "right to livelihood" available to the employees under Article 21 of the Constitution vide principles enunciated by the Honble Supreme Court in Olga Tellis v. Bombay Municipal Corporation : A.I.R. 1987 S.C. 180 : (1985) 3 S.C.C. 545.

64. The Supreme Court in the case of G. Govinda Rajulu v. The Andhra Pradesh State Construction Corporation Ltd. and Anr has itself ordered the continuance of the employees on the same terms and conditions either in the Government Departments or in Government Corporations. The Supreme Court in their judgment observed as under:

"We have carefully considered the matter and after hearing counsel for the parties, we direct that the employees of the Andhra Pradesh State Construction Corporation Limited whose services were sought to be terminated on account of the closure of the Corporation shall be continued in service on the same terms and conditions either in the Government Departments or in the Government Corporations."

65. In view of the above discussions, we dispose of this petition finally with the following operative order:

(i) the employees whose services have been terminated or who have been retrenched by means of the order impugned in this petition shall be absorbed by the opposite parties against suitable alternative posts or vacancies in terms of the resolution dated April 10, 1989 adopted by the Nigam and the Government Order-dated April 5, 1990 issued to all the District Magistrates for the absorption of the employees which shall be done by the opposite parties within three months from the date of communication to them of a certified copy of this judgment. The pay already paid to the employees till date under the interim order of this Court or otherwise shall not be recovered from them.

(ii) The State Government shall make a reference of the dispute, if any, surviving after absorption, relating to the retrenchment of the employees to the labour/industrial tribunal under Section 10 of the Industrial Disputes Act within a month from the date of absorption.

(iii) No order as to costs.

Let a writ in the nature of mandamus issue to the opposite parties in terms of the orders contained in Paras (i) and (ii) above.

Petition allowed.