Government of West BengalLabour D'epartment

I.R. BranchN.S.Bldgs., 12th floor

1, K.S.Roy Road, Kol-1.No. Labr/B79/(LC-IR)

IR/11 L-35f13Dated,29.08.17.

ORDERWHEREAS under the Government of West Bengal, Labour Department, Order

NO.1230-IR/11 L-35/13 dated 10.9.14 the Industrial Dispute between Messers IndoMining Equipments Ltd., P.O.Khushberia, P.S.Uluberia, Howrah and their workmenrepresented by Indo Mining Equipments Ltd., P.O.-Khushberia, P.S.-Uluberia,Howrah regarding the issue mentioned in the said order, being a matter specified inthe 3rd Schedule to the Industrial Disputes Act, 1947 (14 of 1947), was referred foradjudication to the Judge, Second Industrial Tribunal, West Bengal.

AND WHEREAS the Judge of the said 2nd Industrial Tribunal, West Bengalhas submitted to the State Government its award on the said Industrial Dispute;

NOW, THEREFORE, in pursuance of the provisions of Section 17 of theIndustrial Disputes Act, 1947 (14 of 1947), the Governor is pleased hereby topublish the said award as shown in the Annexure hereto.

ANNEXURE(Attached herewith)

By Order of the Governorsu:Assistant Secretary to the

Government of West Bengal.

No.Labr/B79f1 (5)(LC-IR) Dated, 29.0B.17.Copy with a copy of the award, forwarded for information and necessary

action to -1. Mis. Indo Mining Equipments Ltd., P.O.Khusberia, P.S.Uluberia,Dist.Howrah ..2. The Secretary, Indo Mining Equipments Ltd. Mazdoor Union, P.O.Khusberia,P S.Uluberia, Dist. Howrah3. The Assistant Labour Commissioner, West Bengal, In-Charge, LabourGazette.4. The Labour Commissioner, West Bengal, New Secretariat Buildings, 1, K.S.R~oad, 11thfloor, Kolkata-700 001,0" The O.S.D., IT Cell, Labour Deptt., with the request to cast the Award in theDepartment's website ..

Assistant Secretary

.•J'

Dated,29.8.17.

Copy forwarde for information to :-1. The Judge, Se ond Industrial Tribunal, West Bengal with reference to hisMemo NO.977-L.. dated 17.7.17.2. The Joint Labou Commissioner (Statistics), West Bengal, 6, Church Lane,

Kolkata-700 001.

JntllR/order

Assistant Secretary

In the matter of an industrial dispute under Government of West Bengal Order of

Reference No. 1213-IR dated 10.09.2014 and corrigendum being No. 179-IR

dated 11.03.2016 between Mis. Indo Mining Equipments Ltd. , P.O. -Khushberia, P.S. U1uberia, Howrah and their workmen represented by Indo

Mining Equipments Ltd. ,P.O. - Khushberia, P.S. Uluberia, Howrah.

CASE NO. VII-Ol/2007

BEFORE THE SECOND INDUSTRIAL TRIBUNAL, KOLKATA,

WESTBEGNAL

PRESENT: SHRI SRIBASH CHANDRA DAS, JUDGE

SECOND INDUSTRIAL TRIBUNAL.

Date of passing Award: 13.07.2017

AWARD

The case arose by way of Order of Reference uls 10, read with sub-section

2, of the Industrial Disputes Act, 1947 (14 of 1947). The Deputy Secretary to the

Government of West Bengal, Labour Department, IR Branch, East India House,

2nd floor, 20 B Abdul Hamid Street, Kolkata - 69 (as then was) in his order No.

179-I.R. I 11L-35113dated 11.11.2016 making the reference mentioned that an

industrial disputes exists between Mis. Indo Mining Equipment Ltd, P.O.

Khusberia, P.S. Uluberia within District - Howrah and Indo Mining Equipment

Ltd Mazdoor Union, P.O. Khusberia, P.S. Uluberia, District - Howrah relating to

the issues falling in the 3rd Schedule in the industrial disputes Act, 1947

(subsequently referred as Act) and it became expedient on its part that the dispute

is required to be referred to in this Industrial Tribunal constituted under 7A of the

Act and referred the dispute to this Tribunal stated to be constituted under

notification No. 803-IRlIRl3A - 2 I 57 dated 11.03.1957 for adjudication and

urged the Tribunal to submit its Award to the State Government within period of

three months from the date of its receipt as per provision of sub section (2A) of

section 10 of the Act, and he separately mentioned the issues. The case record

shows that after corrigendum No. 112-IR dated 28.01.2015 the issues are (i)

whether the closure declared by the management with effect from 05.03.2012 is

justified or not and (ii) To what other relief, if any, are the workmen entitled?

The Order of Reference as mentioned above was received by this Tribunal

on 28.10.14 and initiated proceeding by issuing summon on both parties. After

receiving summon both parties entered into appearance by filing letter of

authority authorising Ld. Advocates who also filed Vakalatnama on behalf of

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The workmen represented by Indo Mining Equipments Ltd Mazdoor

Union in their statement of case mentioned that the disputes relates to, and arose

from, illegal, unjust, malafide closure declared by management of the company in

its factory at Khusberia under PS Uluberia in Howrah with effect from05.03.2012, adding that registered office of the company is located at 22, RajaWoodburn Street, 1st Floor, Kolkata - 700001.

It is also stated that the workmen joined the factory in 1997 and they are

also the members of Indo Mining Equipments Ltd. Mazdoor Union at Khusberia

in Howrah. In its statement of the case by the Union it is also mentioned that the

company is a prosperous concern and its main business is manufacturing of cranes

chasis, flange, cable sphere, hydraulic sphere of Ashoka Leyland, transformer,

cabinet etc. It is also stated that one Mr Om Prakash Ginodia is one of the

Directors of the company and he is looking after the entire business and he is also

responsible for all consequences of his activity. It is also mentioned that the

management of the company indulges in unfair labour practice of hiring and firing

workers without caring the requirement of law and principles of natural justice

and he is also in habit of declaring closure of works whimsically and he did so

several times on flimsy and false pretext only to put pressure on the workers to

compel them leave the work from the factory of the company. It is also stated by

the Union that the workers are very poor persons and they were given below

minimum wages and daily rate of workers as used to be given to them was

Rs. 100 to Rs. 150 per day and no increment would also be given. It is also

mentioned that despite oral and written request for enhancing the wages nothing

was done and last agreement with regard to giving of increment was held on

03.08.2006 and that agreement remained valid for three years. It is also stated

that after expiry of the agreement dated 03.08.2006 both union and workers

placed demand for increment and nothing was done and workers made further

demand for enhancement of salary and then management of the company

threatened workers by stating that the company would close down its factory.

It is also stated that the management never paid wages in time and

intentionally withheld wages for no reason and then the Union and workers

approached Assistant Labour Commissioner, Uluberia on 14.10.2011 for solving

the dispute. It is next stated in the statement of case that the company illegally

and unjustly and also with ulterior motive declared closure of its factory on and

from 05.03.2012 by issuing a notice on 04.03.2012 in violation of requirement of

section 25FFF of the Act, and it further asserted in the statement that the reasons

mentioned in the notice are not true and correct and the company also failed to

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despite protest by the workers against the closure and also demand for lifting ofthe closure nothing was done by the company.

It is also stated by the Union that such illegality and arbitrary action on the

part of the management of the company rendered the workmen to prolongunemployment and also starvation of the workmen with family members and the

workers are unemployed till date. The union also mentioned that by its letter

dated 07.03.2012 it raised an industrial disputes before Deputy Labour

Commissioner, Government of West Bengal at Howrah requiring him to intervene

into the matter along with filing of a written complaint before sub divisional

officer at Uluberia on 30.03.2012, and accordingly Deputy Labour Commissioner,

Uluberia convened joint meeting several times, but there could not be any

settlement and then Conciliation Officer considering the demand of the Union

submitted a report to the appropriate Government and then the Order of Reference

in question was made. Adding that the closure of the factory is ifso facto bad in

law, unfair and malafide, the Union has prayed for getting relief arid urged the

Tribunal to answer the issue in favour of the Union.holding that the closure of the

factory with effect from 05.03.2012 by the management of Mis. Indo Mining

Equipment Limited is illegal, unjust, malafide and not justified, improper and

inoperative and also to grant the relief of reinstatement of the workmen with back

wages and incidental benefits including bonus and also to grant any other relief as

may be deemed fit and proper on merit including interest holding as if the closure

is not real in the eye of law. The written statement was signed by

Shri Jugal Kulia mentioning that he is the Vice President of the Union and he alsosigned the verification thereto.

As in the case record, on behalf of management of company Mis. Indo

Mining Equipment Ltd., subsequently mentioned as company, after getting

summon entered into appearance and it appointed Ld. Advocates Mr Balai Pal,

Mr Ananda Gopal Maity and Ms Roma Sarkar, all of whom filed vokalatnama

and letter of authority purported to be executed by the company as mentioned

earlier. As required by law the company was given opportunity to file written

statement but the company started becoming absent without any step recurringly

and the case records shows that as per order No. 21 dated 09.06.2016 the

company was directed to show-cause mentioning as to why the case would not be

heard and determined exparte in accordance with law requiring the company to

file show-cause after about 7 weeks. The show-cause notice, as the case records

shows, was sent to the company by registered post with acknowledgement and as

per service return of the show-cause notice the company received the same duly

and it was also mentioned in order No. 22 dated 27.07.2016 that SIRwas received

due service. Notwithstanding getting all the show-cause notice, the

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company did not appear even after a lapse of 8 months of time from due service

of the show-cause notice and last of all on 26.04.2017 the case was fixed for

hearing exparte under Rule 21 of the West Bengal Industrial Disputes Rules,1958.

During final hearing as per procedure under Rule 20 H of the West Bengal

Industrial Disputes Rules, 1958, the Union examined as many as two witnesses

viz. Shri Jugal Kuila and another Shri Ashit Kumar Mondal as PW1 and PW2

respectively and also adduced documentary evidences which are a letter to the

Assistant Labour Commissioner dated 04.10.2011, Kumar Kumari Bhavan,

Uluberia, Howrah by the Secretary (Exhibit 1), notice of closure issued by one

Mr Rajat Ginodia of Mis. Indo Mining EquipmentsLtd. dated 04.03.2012 (exhibit

2), a letter to the Deputy Labour Commissioner, Netaji Subhas Road, Sushama

Building, Howrah dated 07.03.2012 by General Secretary, Indo Mining

Equipment Mazdoor Union (exhibit 3), one letter to the sub divisional officer

(SDO), Uluberia, Howrah dated 30.03.2012 by General Secretary, Indo Mining

Equipments Ltd Mazdoor Union stated to be affiliated to West Bengal Mazdoor

Federation, TUCC with registration No. 22941 (exhibit 4), one letter addressed to

Indo Mining Equipments Ltd, Uluberia, Howrah dated 01.10.2011, and a letter bycompany (exhibit 5).

Ld. Lawyer for the Union made oral argument and also filed notes of

argument supported by case law in the workmen of Johnson & Nicholson (I) Ltd

versus State of West Bengal and others in W.P. No. 947 of2009 of Hon'ble High

Court, Calcutta having judgement dated November 25,2010.

Decision with ReasonsIssue No.1: -

Whether the closure declared by the management of the company with

effect from 05.03.2012 is justified or not?

Thus the specific case regarding issue has already been seen during

mentioning of the written statement filed on behalf of Union. For

recapitulation the matter in brief is that the company having its business of

manufacturing of cranes chassis, flange, copper sphere, hydraulic sphere of

Ashoka Leyland, transformer cabinet etc. is mainly looked after by one of its

Directors viz. Mr Om Prakash Ginodia who is stated to be a man mostly

resorting to unfair labour practice of hiring and firing of workers illegally with

an intention to subjecting workers under pressure to compel them to leave the

factory. The workers being daily rated used to be paid wages without any

proper increment and despite several requests by workers the company did not

enhance the wages. Last of all regarding payment of increment an agreement

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on 03.08.2006 was executed between them with validity of three years and

after the expiry of that agreement the workers demanded increment but to no

effect and the company, as alleged, instead of giving increment subjected the

workers to threat to close down the factory. The Union informed all these to

Assistant Labour Commissioner, Uluberia, Howrah in writing on 14.10.2011,

but on 04.03.2012 the company issued notice declaring closure of its factory

by issuing a notice effecting it the following day i.e. 05.032012 in violation

of requirement of law U/S 25FFF of Industrial Disputes Act, 1947 mentioning

false ground without giving any compensation to the workmen rendering the

workmen to starvation. Though the workers, as stated, raised dispute with the

company for lifting closure yet company did nothing. The Union raised this

matter before concerned Deputy Labour Commissioner, Government of West

Bengal at Howrah in writing on 07.03.2012 for its intervention. Though that

Deputy Labour Commissioner intervened in that matter by calling joint

meeting a few times but to no effect, after which conciliation officer was,

however, being convinced about the reasonableness of the demand of Union

reported it to the State Government which then referred it to the Tribunal for

adjudication. Thus the case as has been raised by the Union is an illegal

closure. Section 25FFF of the Industrial Disputes Act, 1947 provides for

compensation to workmen in case of closure down of undertakings. As per

substitution of the law under sub section I of section 25FFF of the Act it is

stated that before the existing proviso of the Act, the Government of West

Bengal inserted the proviso mentioning in the way that provided that prior

payment of compensation to the workmen shall be condition precedent to the

closure of any undertaking and it has been alleged that this mandatory

provision of law was also not complied with.

Against these specific case as has been raised by the workman, the

company did nothing as it did not file written statement to contest the case

though the company entered into appearance after getting notice.

During argument Ld. Lawyer for the workman mainly emphasized that·

closure declared by the company is illegal, unjust and malafide. Ld. Lawyer

continued to say that the management of the company habitually indulges in

unfair labour practice of hiring and firing without following the mandatory

requirements of law and also principles of natural justice. Ld. Lawyer

explained that such practises are being resorted to by the management of the

company only to keep them under pressure so that it becomes easy on the part

of the management to compel them leave the company. It has been added that

workers were paid below minimum wages which were @ Rs 100 to Rs 150

per day without increment despite taking up such payment below minimum

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wages was raised by the union as a protest both verbally and in writing. Ld.

Lawyer raised that last of all on 03.08.2006 there was an agreement between

the management and the union regarding payment of increment and it

remained valid for 3 years and after its expiry after 3 years management

refused to do anything despite demand by the Union.

Ld. Lawyer categorically raised that the management of the company

illegally declared closure of its factory with effect from 05.03.2012 by issuing

a notice dated 04.03.2012 violating the compulsory requirement of section

25FFF of the I.D. Act, 1947 and did not pay compensation to the workmen

prior to such closure but the requirement of law U/S 25FFF provides a

condition precedent for payment of compensation. The Union raised protest

against such illegal closure and requested the management to lift the closure

but to no effect.On the point of law Ld. Lawyer emphasized that section 25FFF of the Act

provides for compensation to workmen in case of closing down an

undertaking in the way that where an undertaking is closed down for any

reason whatsoever every workman who has been in continuous service for not

less than 1 year immediately before closure shall subject to the provisions of

sub section 2 of that section be entitled to notice and compensation in

accordance with the provision of section 25 F of the Act as if the workman

has not been retrenched. Referring notice of closure dated 04.03.2012 (exhibit

2) Ld. Lawyer raised that it is a general notice and it was not served and no

closure compensation was paid and it was not issued by competent authority

and it also did not contain anything regarding payment of compensation to

workmen. Ld. Lawyer, referring section 25FFA of the Act which is West

Bengal Amendment raised that a 60 days' notice must be required to be given

of the intention of closure and it must be issued in prescribed manner

mentioning reasons for the same but all these are absent in the notice. Ld.

Lawyer emphasized that closure of an undertaking entails termination of

employment and actually the workmen by that illegal closure have been

rendered totally unemployed and incomeless.Citing a case law in W.P. No. 947 of 2009 between workmen of Jenson &

Nicholson (I) Ltd. versus the State of West Bengal and others of Hon'ble High

Court, Calcutta Ld. Lawyer submitted that the fact of the case is exactly

similar to the present one and in that case Hon'ble Court was very much

pleased to decide in favour of the workmen. Ld. Lawyer emphasized that the

workmen have brought sufficient evidence both oral and documentary, to

meet the standard of proof as required by law as also emphasized by Hon'ble

Judge in that case.

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As for requirement of law, the Hon'ble High Court, Calcutta in the above

cited case was very much pleased to observe that the manner in which the

provisions of law uls 25FFF and uls 25FFA have been framed, with a

stipulation on prior payment and further emphasized that this should be a

condition precedent and it is the further observation of Hon'ble Court in that

case that requirement of such provisions of law cannot be held to be possible

of being waived. The Hon'ble Court also observed by referring a judgement

of Hon'ble Supreme Court of India in case of U.P. State Brassware

Corporation ltd versus Uday Narayan Pandey (2006/ISCC 479) that closure

without complying with the requirement of law uls 25FFF I 25FFFA of the

Act is an illegal abinitio.Now, it is to be seen whether the workman has become able to prove the

case sufficiently or not. PWI Shri Jugal Kuila has deposed that he joined the

company in 1997 as operator turner and he along with other workers of the

company are the members of Indo Mining Equipments Ltd Mazdoor Union

and he is also the Vice President of the Union. He also deposed that the

company is a manufacturer of crane chassis, flange, copper sphere hydraulic

sphere of Ashoka Leyland transformer cabinet etc. PW1 also deposed that

one Mr Om Prakash Ginnodia who is one of the Directors of the company has

been looking after the entire business of the company and he is in the habit of

declaring suspension of works in the factory whimsically time to time without

any proper reason. PWI also deposed that wages ofthe workers are below the

minimum wages and it was @ Rs. 100 to 150 per day without any increment.

PWI further deposed that other workers along with PWI along with the Union

made several requests both orally and in writing for increasing the salary but

the management did nothing. PWI deposed that regarding payment of

increment there was an agreement between Union and management on

03.08.2006 and it only remained valid for 3 years and after that despite

demands, the company did not do anything and the company further

threatened that it would close down the factory. PWI also deposed that

company thus remained vindictive and then the Union raised this matter

before Assistant Labour Commissioner, Uluberia by letter dated 14.10.2011.

PWI also stated that in violation of law uls 25FFF of I.D. Act, 1947 company

issued a notice on 04.03.2012 declaring closure of its factory on and from

05.03.2012 without paying any compensation and the reasons in the notice are

not proper and correct and also did not pay any compensation as a condition

precedent as required by law. PWI also deposed that as a result PWI and

other workers became unemployed and started suffering from starvation along

PWI also deposed that all persuasions, approaches and

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demands before the company yielded no result and Union by letter dated07.03.2012 raised an industrial disputes before Deputy Labour Commissioner,

Government of West Bengal at Howrah requiring it to intervene in the matter

and also informed the matter in writing to sub divisional officer, Uluberia. As

a result the Deputy Labour Commissioner convened joint meetings on several

dates but due to adamant attitude of the management the matter could not be

settled. These are the entire version of PW1. The other witnesses Shri Ashit

Kr. Mondal (PW2) deposed that he joined the company in 1997 as lathe

operator / turner. He also deposed that the company is a manufacturer of crane

chassis, flange, copper sphere hydraulic sphere of Ashoka Leyland,

transformer cabinet etc. He also deposed that one Mr Om Prakash Ginnodia

being of Directors is looking after the entire business but he is in the habit of

declaring suspension of works in its factory most often whimsically without

any proper reason. PW2 also deposed that the company gave wages at below

minimum limit and it was @ Rs. 100 to Rs 150 per day without increment.

PW2 also deposed that regarding payment of increment there was an

agreement between company and Union on 03.08.2006 and it continued for

three years and after that payment of increment was stopped and .then despite

demands by Union the company did nothing and at the same time the

company threatened to close down the factory, as a result the Union and the

workers were compelled to ventilate their grievances to the Assistant Labour

Commissioner at Uluberia in writing on 14.10.11. PW2 also deposed that

after that the company declared closure of its factory from 05.03.2012 by

issuing notice dated 04.03.2012 illegally and also in violation of law uls

25FFF of I.D. Act and did not pay any compensation at the time of closure.

PW1 also mentioned that the reason that was mentioned in the notice is not

correct and true and did not pay the compensation as a condition precedent as

given in law. PW2 also deposed that the closure of factory by th~ company is

an illegal, uncalled for, unjustified and arbitrarily and as a result PW2 has

become totally unemployed and suffered from starvation with family

members. PW2 also deposed that various persuasions, approaches, demands

before the company were of no result and then Union by writing a letter on

07.03.2012 raised an industrial disputes before Deputy Labour Commissioner,

Government of West Bengal at Howrah requesting him to intervene and also

filed a complaint before SDO, Uluberia over the matter. PW2 also deposed

that Deputy Labour Commissioner, conveyed joint meetings on several dates

but due to adamant attitude of the management of the company the matter

could not be settled.

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Thus, the evidences given by PWI and PW2 are uniform, and it is

factually clearly established that PW1 and PW2 joined the company as a

worker in 1997 and they also became members of the Union under name and

style of Indo Mining Equipments Ltd. Mazdoor Union which is found to have

registration No. 22941. It is clearly established by the evidences that the

company is a prosperous concern being manufacturer of crane chassis,

flanges, copper sphere, hydraulic sphere of Ashoka Leyland, transformer etc

and one Mr Om Prakash Ginnodia being a Director of the company has been

leading the entire business of the company and he is in the habit of

whimsically declaring suspension of works in its factory most often on false

grounds. The wages being @ Rs 100 to Rs. ISO per day is below minimum

limit and the workers would not be given proper increment. .Regarding

payment of increment an agreement was executed on 03.08.2006 which

remained valid only for 3 years but after that company stopped paying

increment to the workers and when the workers / Union demanded increase of

salary and increment the management of the company threatened to close

down its factory as a result of which the Union raised the grievances in

writing before Assistant Labour Commissioner at Uluberia on 14.10.2011 and

subsequently the management of the company having taken vindictive attitude

declared closure of its factory with effect from OS.03.12 by issuing notice

dated 04.03.2012 without any closure compensation as mandatory and

condition precedent u/s 2SFFF of the LD. Act, 1947 and despite demands and

protest by the Union the company did not lift the closure. As a result the

workers become unemployed and started facing starvation with their family

members. Then Union by writing a letter dated 07.03.2012 raised an

industrial dispute before Deputy Labour Commissioner, Government of West

Bengal at Howrah. Deputy Labour Commissioner conveyed several joint

meetings but no result.The documentary evidences which are proved on the basis of oral

evidences of PW1 show that on 14.10.2011 the Union viz. Indo Mining

Equipment Mazdoor Union having registered No. 22941 wrote a letter

(exhibit 1) to Assistant Labour Commissioner, Uluberia mentioning that the

company did not pay increment to the workers for the year 2010-11, PWI also

deposed similarly. The contention of this letter is that the Union wrote the

letter mentioning that the company did not pay any increment for the year

2010-11 with the contention that the company did not issue EPF slip and this

document (exhibit 1) is found to be corroborating Uniform version of both

PW1 and PW2 that there was an agreement between company and Union

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I~ years and after that the company refused to make payment of any increment.

Notice dated 04.03.2012 issued by order ofMr Rajat Ginodia of the company

(exhibit 2) is stated to be the closure notice. It is the uniform version of both

PW1 and PW2 that this is closure notice and it was issued illegally without

making any payment of compensation as mandatory requirement u1s25FFF of

the Act. Scrutinizing this notice (exhibit 2) it is found that it is simply

mentioned in the notice that the factory of the company would remain close

till further notice mentioning an advisory in the notice (exhibit 2) that the

workers should go to the company after about 5 days i.e. on 09.03.2012 for

settlement of account. Thus the notice is conspicuously silent in regard to

payment of any compensation u1s25FFF of the Act and the assertation of this

illegality in closure notice (exhibit 2) is found to be substantiated by the

uniform version of both PW1 and PW2 that Mr Ginodia of the company being

one of the Directors has been looking after the company and he is whimsical

in declaring suspension of factory on any flimsy and false pretext and also

substantiate the version of both PW1 and PW2 that when demands for

increment of salary were being made Mr Ginnodia threatened the workers to

the close down the factory and he really did so by the notice in question

(exhibit 2) which is found to be not in compliance with the mandatory

requirement of law as per sections 25FFF of the Act. Both PWS uniformly

stated that they informed the matter of such illegalities on the part of the

company to Deputy Labour Commissioner at Howrah and also to SDO at

Uluberia in writing (exhibit 3, exhibit 4) respectively. The contention of the

letter to the Deputy Labour Commissioner (exhibit 3) shows that it was given

to Deputy Labour Commissioner by the Union mentioning that Mr Ginodia

illegally closed the factory with effect from 05.03.2012 by issuing a notice

dated 04.03.2012 and over such closure no contract was executed between the

company and the Union and the reasons mentioned in the notice is baseless

and false. It is also mentioned in the letter (exhibit 3) that the Union also

informed all these in writing to the Assistant Labour Commissioner at

Uluberia, yet the problem was not solved and by this letter the Union urged

the Deputy Labour Commissioner to call for joint meeting to solve the

problem between the company and the Union and almost same contention is

also made in the letter addressed to SDO, Uluberia (exhibit 4). Thus the

factual position as has been made in the written statement filed on behalf of

workmen have been found to be proved by clear evidences of both PW1 and

PW2 which are further corroborated by documentary evidences (exhibit 1,

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Ld. Lawyer for the workman explained the latest position of law citing the

judgement as already referred earlier and Ld. Lawyer also mentioned the

observations of Hon'ble Court in that judgement and emphasized that since no

prior payment of compensation was made by the company, the notice of

closure (exhibit 2) of the company declaring closure of its factory is illegal

because prior payment of compensation arising out of declaring of closure is a

condition precedent for effecting such closure. Ld. Lawyer also raised that it

is emphasized in the cited ruling that such payment shall be condition

precedent to the closure of the undertaking and in the absence of prior

payment being made the closure shall be a nullity and non compliance of the

mandatory provision of law has rendered direction of the company making the

closure totally invalid and as a result the action of the company in declaring

such closure is void abinitio and natural consequence is that the workman

shall have to be reinstated with consequential benefits.

Thus the entire matter in the case has been seen and also scrutinizing

judgement of Hon'ble Court as referred by Ld. Lawyer for the workman I am

of view that the ratio of decision of this judgement is applicable in this case

also and it is also supported by judgement of Hon'ble Supreme Court in

Anoop Sharma versus Executive Engineer, public health division No. 1

Panipat reported in 2010 (5) SC 99.

Thus I hold that closure compensation was not paid to the workmen prior

to declaration of closure by closure notice dated 04.03.2012 (exhibit 2) as

required u/s 25FFF of the Act which requires that payment of closure

compensation prior to the declaration of closure is a condition precedent for

effecting the closure and as a result the closure notice dated 04.03.2012 issued

by Mr Rajat Ginnodia of the company (exhibit 2) is a illegal, inoperative and

the closure of the factory of the company is void abinitio and the natural

consequence in this case is to be reinstatement of the workman with

consequential benefits.

Issue No.2: What relief, if any are the workmen entitled to.

The specific case over the issue is that the workman started working in the

factory from 1997 and due to declaration of closure by the management of the

company effecting from 05.03.2012 by the notice dated 04.03.2012 by

Mr Rajat Ginnodia of the company has rendered the workman to become

totally unemployed and have been facing starvation with their family

members. Both PWI and PW2 uniformly deposed that since the time of

closure of the factory effecting from 05.03.2012 they have remained

unemployed and facing starvation. Ld. Lawyer for the workman argued that

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during the period starting from time of closure effecting from 05.03.2012 as

per notice dated 04.03.2012 (exhibit 2), the workmen were not gainfully

working at any place and they deserve to get full back wages with incidental

benefits including bonus and interest and also cost. I do not find anything to

disbelief uniform evidences of the PWs that they could not get any gainful

work from the time of closure effecting from 05.03.2012 and they are facing

starvation with their family members (exhibit 2) and consequently the

workmen are entitled to get relief of reinstatement with full back wages and

incidental benefits including bonus effecting from the date of closure effecting

from 05.03.2012.

I;.

In the summing up, it is to say that though it is exparte, yet the case is

found to be sufficiently proved by the workman.

It is therefore,Or d ere d,

that the issue No. 1 is decided by holding that the closure declared by the

management with effect from 05.03.2012 is totally illegal, inoperative and

void abinitio and issue No. 2 is decided in the way that the workmen are

entitled to get grant of reinstatement to their respective positions which they

held immediately prior to the closure in question with effect from 05.03.2012

and accordingly the company is directed to give them full back wages with

incidental benefits including bonus immediately, and the order of reference

dated 10.09.2014 with its corrigendum dated 28.01.2015 and 11.03.2016 with

issues framed therein are decided ex-parte accordingly and it is also awarded

accordingly by me. The judgement along with requisite number of copies be

prepared and requisite number of copies be also sent to the appropriate

Government i.e. Additional Chief Secretary to the Government of West

Bengal, Labour Department.

Dictated & Corrected by me

.scl/-Judge

(S. C. Das)Judge

Second Industrial TribunalKolkata13.07.2017