1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9056 OF 2007 D.G. Gaikwad & Ors. ...Petitioners. Vs. Poona Oxygen & Acctyline Co. (P) Ltd. ...Respondent. .... Mr.Indrajeet Kulkarni for the Petitioner. Mr.Neel Helekar with Mr.Nitin Holkande i/b. M/s. Haresh Mehta & Co. for Respondent No.1. Mr. Rahul Nerlekar for Respondent No.5. ..... CORAM : DR. D.Y.CHANDRACHUD, J. November 18, 2008. P.C. The Labour Court dismissed a complaint of unfair labour practices under Items 1(a), (b) and (c ) of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The dismissal of the complaint has been affirmed in revision by the Industrial Court. Though the complaint was originally filed by the Union, it was subsequently prosecuted by the workmen. 2. The First Respondent is a Company incorporated under the 2 Companies' Act, 1956 and was engaged in the manufacture of industrial gases, medical gases and acetylene at its factory situated at Hadapsar. Commercial production commenced in 1965. Manufacturing activity at Hadapsar was closed down with effect from 25th September 1999. The workmen at Hadapsar were, according to the management, rendered surplus. A Seniority List was displayed on 15th September 1999. The workmen were retrenched and retrenchment compensation under Section 25F of the Industrial Disputes Act, 1947 was admittedly paid. At the time of retrenchment, 35 workmen were employed out of which 8 are stated to have settled their dues. The provisions of Chapter V-B of the Industrial Disputes Act, 1947 were not attracted. 3. In the complaint of unfair labour practices the case of the Union was that the Government of Maharashtra declared the area comprised in Jejuri-MIDC as an industrially backward area. Consequently, several incentives were provided for industries and in order to avail of these benefits, the First Respondent started a factory at Jejuri about five years ago for the manufacture of Nitreous Oxide. In the complaint, reinstatement with consequential benefits was 3 sought. 4. In the Written Statement the contention of the First Respondent was that the plant at Hadapsar, which had commenced commercial production in 1965 with the aid of machinery imported in 1963-64, had become outdated and required heavy maintenance. Electric power was the main source of energy and had become expensive. Several foreign Companies had entered the field. On account of a recession and competition in the industry, particularly from units which had been established with modern technical know how, a decision was taken to close down the plant at Hadapsar. The distribution network was sold to the Fifth Respondent. The manufacturing activity was closed with effect from 25th September 1999. Prior thereto a Seniority List was displayed on 15th September 1999. Retrenchment compensation was paid in accordance with law. 5. The Labour Court has on the basis of the evidence which was adduced in the complaint arrived at the conclusion that the manufacturing activities at Hadapsar were closed and that the plant and machinery were sold after September 1999. The distribution network of the First Respondent was also sold to the Fifth 4 Respondent. The Labour Court rejected the contention that the First Respondent has set up a new Unit at Jejuri. The First Respondent is a Company incorporated under the Companies' Act, 1956. The Unit at Jejuri was set up in partnership inter alia by a son of Shri H.L. Poorswani who was a shareholder. The Labour Court held that the products manufactured by the erstwhile Unit at Hadapsar and the Unit at Jejuri were different and that there was no nexus between the First Respondent which is a Private Limited Company and the Fifth Respondent which is a partnership firm. The requirements for effecting lawful retrenchment in law under Section 25F were duly complied with. 6. On behalf of the Petitioners, it has been submitted that the Labour Court did not consider the documentary material which was produced in its proper perspective. The invoices of the First Respondent which were produced on record at Exhibits 242 to 245 would, according to the Petitioners, show that the First Respondent was carrying on business. Learned Counsel submitted that the financial position of the First Respondent was not considered. The Labour Court, it is submitted, ought to have considered how the Fifth 5 Respondent was set up and whether any financial outlay was made by the First Respondent in the establishment of the Fifth Respondent. 7. The submissions which have been urged on behalf of the Petitioners cannot be accepted. The evidentiary material on the record was sufficient to sustain the finding of the Labour Court that there was a closure in fact. The manufacturing activities at Hadapsar Unit ceased from 25th September 1999 and the plant and machinery were sold. The witnesses for the First Respondent denied that any part of the plant and machinery were transferred to the Unit at Jejuri. The circumstances which warranted a closure were explained in evidence. The case of the First Respondent was that the Plant at Hadapsar which was set up in 1965 was outdated; the cost of production had increased and that there was severe competition from several Units established with modern technical know how. The Plant at Jejuri has not been established by the First Respondent which is a body corporate. There is nothing to indicate any functional integrality between the Plant at Jejuri and the Plant at Hadapsar. The Plant at Jejuri was set up by a partnership concern. The mere fact that the partners included the son and a daughter-in-law of a 6 shareholder of the First Respondent would not be adequate in itself to establish that there was no closure in fact, or that the closure was mala fide. There is absolutely no evidence produced on record by the complainant to support the submission that the Plant at Jejuri was set up by the First Respondent. In these circumstances, the finding of the Labour Court which is confirmed in revision is correct. There has been a closure in fact and the requirements for a valid retrenchment of the existing workmen, has been duly fulfilled. As already noted, the provisions of Chapter V-B are not attracted. 8. In these circumstances, no case for interference has been made out. The petition shall accordingly stand dismissed. .....