Civil Appeal No 1074N of 1977
From the Judgment and order dated 26111976 of the High Court of Orissa in original Jurisdiction Case No 811 of 1974
Rajinder Sachher and Amrish Kumar for the Appellant
Pankaj Kalra Amicus Curiae and RK Mehta for the Respondents
The Judgment of the Court was delivered by SHARMA J
The respondent Padmanabha Padhy was appointed as a Lecturer in the appellant College on the 26th July 1971 and was placed under probation for one year
He was informed by the letter dated the 28th March 1972 that his services were no longer required and would stand terminated with effect from the afternoon of the 30th April 1972
He challenged the termination order by a writ application before the orissa High Court which was allowed and the writ petitioner was declared to have continued in service
The appellant has filed the present appeal against the High Court judgment after obtaining special leave
The respondent in the first instance had filed a writ application which was registered as OJC No 308 of 1972 but later withdrew it and approached the Director of Public Instruction in short referred to as the DPI present respondent No 2 for the necessary relief
Subsequently on 1281974 he filed a second writ application being o
JC No 811 of 1974 which has been allowed by the judgment presently impugned
It is stated before us on his behalf that the DPI by his order dated 1991973 declined to interfere which necessitated the filing of the second case
It has been inter alia contended by Sri Padhy in his writ application that his appointing authority was the Managing Committee or the Governing Body and as such the impugned order of termination of his services by the Principal was without jurisdiction
The stand of the College was that the Principal who was the Ex officio Secretary was the appointing authority and was vested with the power to terminate the appellant s services
The counter 710 affidavit of the DPI stated that both the orders of appointment and termination had been passed by the Governing Body and the Principal was in sending the orders to Sri Padhy acting on behalf of the Governing Body
It has further been said that he DPI was not concerned with termination orders passed before the 3rd of May 1972 the date from which the relevant 1974 Amendment of the Orissa Education Act 1969 took effect and he had therefore no power to look into the matter
The High Court held that undoubtedly until confirmation petitioner had no right to the post and during the period of probation he could be turned out from service but in view of the language of the appointment letter and the termination order it proceeded to point out that both the orders had been passed by some authority other than the Principal and the Principal was merely a communicating agent
The High Court further opined that the Principal was acting on behalf of the Management of the Trust which had established the College and the termination order did not emanate from the Governing Body
Observing that it is only the Governing Body of a College which has power to terminate the services of a teacher it was further held that the impugned order was without jurisdiction
The objection to the maintainability of the writ application on the ground that the College was a private institution was rejected and it was held that in view of the provisions of the Orissa Education Act 1969 Berhampur University Act 1966 and the Berhampur University Statutes 1966 the college must be considered to be a statutory body amenable to the writ jurisdiction
Mr Sachher learned counsel appearing in support of the appeal has contended that both the orders of appointment and termination of service were passed by one and the same body and the finding of the High Court to the contrary is not based on any material and therefore has to be set aside
Referring to the statement of Sri Padhy in paragraph 7 of the writ petition that the Governing Body of the College and the Managing Committee are one and the same body it was argued that the termination order was passed by the appointing authority of the writ petitioner and it could not be set aside on the ground of lack of jurisdiction
The maintainability of the writ application in the High Court has also been seriously challenged and it has further been urged that in any view of the matter the High Court on the facts and in the circumstances of the case should have refused to allow any relief to the writ petitioner
711 5
Mr Kalra learned counsel representing Sri Padhy respondent No 1 has submitted that the
finding of the High Court as to the authorship of the appointment and termination orders should not be disturbed by this Court
He also supported the view of the court below that the writ petition was maintainable and that it is a fit case in which the High Court was right in granting the relief as prayed for
The learned counsel for both sides placed before us the appointment and termination orders more than once and there is no manner of doubt that none of the orders was passed by the Principal alone
The termination order stated that the Principal had been directed to inform Sri Padhy that his services were being no longer required and stood terminated with effect from 3041972
It is true that none of the two letters expressly states about the authority passing the respective orders but this much is clear that the Principal was only conveying the decision of another authority and was thus acting in the same capacity on both occasions
The writ petition was founded on the assumption that it was the Principal who had passed the termination order by himself and that he had no jurisdiction to do so
Instead of merely pointing out that it was not so the affidavit on behalf of the College made a confused statement forgetting that the Principal was only one of the members of the Governing Body
Both sides thus misrepresented the situation before the Court and it was only the DPI who correctly appreciated the position
In this background the question arises as to whether the High Court was right in assuming that the termination order was passed by an authority other than the appointing authority
No material or basis has been referred to in the Judgment of the High Court in support of its view and neither side has pointed out before us any evidence to that effect
Mr Kalra contended that in view of the statutory provisions it should be presumed that Sri Padhy had been appointed by the Governing Body as envisaged in law and further in view of the stand of the College before the High Court that the Principal had issued the termination order it should be held that the same was without jurisdiction
The finding of the High Court in this regard is in his opinion thus supported by the supposed admission of the College in its pleading
We are afraid the argument cannot be accepted
The case of the College has been that both the appointment and the termination orders were given by the Principal
This plea is of course incorrect but for that reason the statement by the College cannot be truncated and part of it accepted while rejecting the other part
712 As was observed by the Privy Council in MM Essabhoy vs M Haridas AIR 1915 PC 2 although it is permissible for a tribunal to accept part and reject the rest of any witness s testimony so far as admission in pleading is concerned it cannot be so dissected
It may be accepted as a whole or not at all
We therefore hold that the assumption made by the High Court in this connection being not supported by any material whatsoever on the records has to be set aside
The burden of proving the necessary facts for grant of relief was on the writ petitioner which was not discharged
The writ application was therefore bound to fail
The appeal accordingly must succeed on this ground and it is therefore not necessary to consider the other questions raised on behalf of the appellant
In the result the appeal is allowed the decision of the High Court is set aside and the writ petition is dismissed
Parties shall bear their own costs throughout
N V K Appeal allowed


Summary:
The appellant carries on the business of metal process ing ie beat treatment of metals
In 1963 it established a factory with about 32 workmen called No I Unit
In the year 1975 another factory called No II unit was estab lished for carrying on the same kind of business employing about 75 workmen about 200 yards away from the No 1 Unit
Both the Units had independent location separate factory licences and separate municipal licences
The two Units had separate stores and maintained separate accounts and balance sheets
The workmen of both the units were also employed independently and there was a separate muster roll in re spect of each of the two units
There was no rule or condi tion regarding the inter transferability of the workmen
However there was by mistake the name of one workman by name Kishore Ram of Unit 1 entered in the muster roll of the II Unit in October 1980 and it had been scored out later
On finding that the workmen of No 1 Unit were wilfully slacking their work and that there was growing indiscipline among them the appellant decided in the year 1981 82 to reduce the three shifts working previously to two shifts
The indiscipline and the lack of production continued and on it becoming impossible for the appellant to carry on 415 with even the two shifts as reduced the appellant came to the unhappy conclusion that it had no alternative left but to close down the No 1 Unit altogether with effect from 15282 and closure compensation was offered to the entire staff of 32 workmen
The workmen of the I Unit raised through their Union namely Association of Engineering Workers Bombay an indus trial dispute reference IT No 218 of 1982
In the state ment of claim filed by the workmen it was urged i that the two units which were being run by the appellant had functional integrality and were for all purposes parts of one establishment and that the workmen were mutually trans ferable from one unit to the other ii that the reasons given by the management for closing down Unit No 1 is false the action of the management was arbitrary and was colourable exercise of the management s power of closure iii the impugned action was by way of victimisation for the trade union activities of the said workmen in Unit No 1 and the principle of last come first go while terminating the services of the workmen having not been followed as required by section 25 G of the Act the termination was illegal
The Tribunal rejected the case of the workmen that the closure was in retaliation to the trade union activities of workmen and found that there was no victimisation of the workmen and the workmen concerned were not entitled to be reinstated as the closure of the 1 Unit had become legally effective from 15121982 and passed its award to that effect on September 6 1983
Aggrieved by the Award passed by the Tribunal the workmen filed a petition under Article 226 of the Constitution of India before the High Court of Bombay challenging the legality of the Award
The learned Single Judge before whom the writ petition came up for consideration reversed the Award of the Tribunal and re manded the proceedings back to the Tribunal for afresh disposal
By the time the decision was rendered there were only 14 workmen who were interested in the dispute and therefore the learned Single Judge directed the Tribunal to consider whether the termination of services of any of the 14 workmen whose claim for reinstatement still subsisted was done in violation of the principles laid down under section 25 G of the Act
Aggrieved by the judgment of the learned Single Judge the appellant preferred an appeal before the Division Bench of the High Court
That appeal having been dismissed the appellant has come by way of special leave to the Supreme Court
Allowing the appeal the Court HELD 1
The existence of the unity of ownership supervi sion 416 and control in respect of the two units the fact that the conditions of the service of the workmen of the two Units were substantially indentical the fact that both the units are situate at a distance of 200 meters and that the busi ness of heat treatment processing in the two Units are the same are not by themselves sufficient in the eye of law for holding that there was functional integrality between the two Units
This is a clear case of closure of an independent unit and not of a part of an establishment
422D E Workmen of the Straw Board Manufacturing Co Ltd vs Ms Straw Board Manufacturing Company Ltd followed
SG Chemicals and Dyes Trading Employees  Union vs SG Chemicals and Dyes Trading Ltd  Anr  distinguished
The question of application of section 25 G of the Act arises only when the services of the workmen are re trenched within the meaning of section 25F and not when sections 25FF and 25FFF are applicable
If the case is one of genuine closure then the question of applying section 25 G of the Act which is applicable to a case of retrench ment would not arise
It is not the case of the workmen in the present case that the II Unit could not continue to function after the closure of the I Unit
In fact the II Unit is continuing to function as usual even now notwith standing the stoppage of the activities at the I Unit
423C E Santosh Gupta vs State Bank of Patiala   relied on
It is not necessary that in the order to effect closure of business the management should close down all the branches of its business
A genuine closure of a Unit even though it did not amount to closure of the business could not be interfered with by an industrial Tribunal
The clo sure was stoppage of part of the activity or business of the management and such stoppage is an act of management which is entirely in the discretion of the management
No Indus trial Tribunal could interfere with the discretion exercised in such a matter
423F H 424A B Management of Hindustan Steel Ltd vs The Workmen  Ors   Workmen of the Indian Leaf Tobacco Development Co Ltd Guntur vs Management of the Indian Leaf Tobacco Development Co Ltd Guntur  fol lowed
417 4
The two factors namely i the provident fund accounts of the employees and the Employees  State Insurance accounts of the two units had common numbers with the au thorities concerned and ii settlements containing similar terms had been entered into in 1974 between the management and the workmen of the two units are not sufficient for holding that the two units were one and the same notwith standing the fact that the nature of the business carried on in them was the same
424B D 5
On a consideration of the entire material it is clear that i the Tribunal had not committed any error in record ing the findings which called for interference at the hands of the High Court under Article 226 of the Constitution ii this case is one of bona fide closure of an independent unit of business and not a case of termination of services of workmen requiring consideration on remand by the Tribu nal in the light of s25 G of the Act iii it was a case where the judgment of the High Court if maintained would result in a wholly unjust situation in which a corresponding number of workmen in the II Unit would be prejudicially affected even though they had nothing to do with the 1st Unit
424E H Indian Cable Co Ltd vs Its Workmen  followed