Case ID: 442

Judgment:
Appeal No. 247 of 1954. Appeal from the judgment and decree dated July 21	 19 53 of the Labour Appellate Tribunal of India	 Third Bench	 Lucknow in Appeal. No. Calcutta 44 of 1952. G. G. Mathur	 for the appellant. H. J. Umrigar	 amicus curiae for the respondent	 874 1956. October 23. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. The appellant is a limited Company	 which had been carrying on business in crushing sugarcane at a place called Pipraich in Gorakhpur District from the year 1932. In 1946 it decided to expand its business	 and with that object	 sold its old machinery which had a crushing capacity of 160 tons per day	 and purchased a new one with 650 tons capacity. The new plant was installed in 1947	 and it actually started working in 1948 49. During this period	 the sugar industry was passing through a crisis owing to shortage of sugarcane	 and in consequence	 the Government assumed control of its production and supply. The quota which was allotted to the appellant 's Mill proved too small to its being worked profitably	 with the result that in 1948 49 and 1949 50 the Company sustained losses which according to the appellant came to Rs. 2	67 042 7 4. After several unsuccessful attempts at setting a larger supply	 the management wrote to the Government on May 11	 1950	 either to increase their quota or to permit them to sell the Mills. In October	 1950	 the Government granted permission for the sale of the plant and machinery	 and pursuant thereto	 the management sold them to a Madras party. As the crushing season was then on	 the appellant obtained from the purchaser a lease of the Mills for the current season agreeing to deliver possession thereof on the termination of the lease. It should be mentioned that the appellant was also carrying on negotiations with the purchaser	 for itself dismantling the machinery and erecting it at Madras for a lump consideration	 expecting to perform the contract through its own workmen. When the workmen became aware of the agreement of sale	 their reaction to it was thoroughly hostile	 and acting through their union	 the respondent herein	 they decided to prevent the transaction going through	 as otherwise they would be thrown out of employment. With that object	 they moved the 875 Government to cancel the permission granted to the appellant for the sale of the Mills	 and they also passed a resolution on December 26	 1950	 to go on strike from January 12	 1951	 and communicated the same to the appellant. This led to correspondence between the parties	 and as that is the foundation of the claim for compensation put forward by the respondent and awarded by the Tribunal	 it becomes necessary to set it out with sufficient fulness. On January 3	 1951	 the Managing Director offered through the Manager of the Mills	 to allot 25 per cent. of the profit on the sale transaction with the Madras party on certain terms and subject to the condition "that the notice of strike should be withdrawn at once and today	 so that arrangement of work could be made". To this	 the reply of the Union on January 5	 1951	 was as follows: "With reference to the assurance given by the Managing Director	 communicated by your goodself to us under your No. 975 dated 4th January 1951	 asking us to withdraw the notice of strike	 we regret to inform you that our fight is with the Government	 which is not solved with this only. Our members are bent upon keeping the Sugar mills here at any cost	 either by strike	 satyagrah	 etc.	 or through any other means guided by our federation	 otherwise there is no assurance of employment of thousands of creatures". Then the letter proceeded to take exception to some of the terms	 and finally wound up by stating that the workmen were waiting for their President Kashinath Pandey to advise them in the matter. Replying to the objections raised by the respondent to some of the terms	 the management wrote on January 8	1951	 that they were ready to reconsider them	 but insisted on the withdrawal of notice of strike as "the chief point". On January 9	1951	 Kashinath Pandey came to Pipraich	 and discussed the matter with the management	 and following upon it	 the General Manager wrote to the respondent on January 10	 1951	 that "in case the strike notice was withdrawn at once he would accede to the following points raised by the Union"	 and then the points were set down. The 876 letter concluded by stating that the amount of compensation "will not be less than a lac". The respondent replied to this on the same day that the workers were waiting for the "final order" of Kashinath Pandey in the matter	 and assured the management that "in the meantime the strike was not coming off from the 12th". After this	 the appellant did not hear from the respondent	 the strike also did not take place	 and the crushing went on till the end of January	 1951	 when the season came to an end. One of the points that arises for our determination in this appeal is whether on this correspondence there was a concluded. and binding agreement that the appellant should pay 25 per cent. of the profits on the sale transaction to the workmen. To continue the narration	 the lease having expired with the crushing season	 the purchaser came over to Pipraich to take delivery of the Mills and to arrange for the machinery being dismantled and removed to Madras for being erected there. The appellant who	 as already stated	 was negotiating to get the dismantling done for a lump consideration found that its workmen were as hostile to it as ever	 and refused to help in the work. To adopt the language of the respondent in its written statement "they declined out of sentiment to dig their own graves". After fruitless attempts at getting them to co 'operate in dismantling the machinery	 the management put up the following notice on February 28	 1951: "The workers of Pipraich. Sagar Mills Ltd. should know that we have sold our Mill to Madras party under the permission of the Government. The party has arrived for dismantling. Under the terms of agreement	 we are bound to help them in this work. So the workers should know that we can do this favour that we can take contract of dismantling here and erection in Madras and keep the workers engaged and request the purchasers for providing them in their concern. Hence it is notified that workers who are not ready to co operate they should consider themselves to be discharged from 1st March 1951. Fifteen days ' notice is served on the workers. Those who 877 create obstructions will be deprived of benefit		 promised to them". But the Union could not reconcile itself to the prospect of the Mills being shifted	 and on March 4	 1951 Kashinath Pandey wrote a letter to the Government threatening to go on hunger strike	 if the Mills were to be shifted from Pipraich. The workmen were thus in no mood to accept the terms contained in the notice dated February 28	 1951	 and so	 the management had to issue further notice on March 14	 1951 in the following terms: "Whereas the workers have already been notified that we have sold our entire plant to a Madras party who have arrived to take charge of the Machines and whereas we have to hand over the plant from 15 3 1951 to the purchasers and thus there will be no work for our workers and whereas the Mazdoor Union	 has already refused our suggestion to engage the workers in the work of dismantling and erection at Madras. Now in pursuance of our notice dated 28 2 1951	 it is notified that the following workers have been discharged from the services since 1 3 1951 subject of course to the payment of 15 days wages. The workers are hereby asked to take their wages of 15 days on the 15th and 16th instant". It appears from a notice dated March 16	 1951	 sent by the appellant to the respondent	 that after the notice dated March 14	 1951	 was issued	 Kashinath Pandey had a discussion with the management	 as a result of which the date of termination of service of	 the workers was extended from the 15th to 21st March pending the decision of the Government on the "future programme of the Pipraich factory"	 the workmen agreeing on their part to "take up the dismantling of the Mill after the said date". But the Government declined by its letter dated March 21	 1951	 to interfere with the sale of the machinery	 and in accordance with the understanding reached above	 the workers should have co operated with the appellant in dismantling the machinery from March 21. But they declined to do so	 and thereupon	 acting in accordance with its notices dated February 28	 1951	 114 878 and March 14	 1951	 the management duly discharged them. In view of the inability of the appellant to take up the contract	 the purchaser entered into direct negotiations with the workmen	 and on 1 4 1951 concluded an agreement with them for dismantling the machinery. The net result was that the appellant lost a contract on which	 as admitted by the respondent	 it would have earned a profit of at least Rs. 2 lakhs. The workers. 	 having taken the benefit of a direct contract with the purchaser for dismantling the machinery	 next turned their attention to the appellant	 and on the basis of the letters dated January 3	 1951	 and January 10	 1951	 sent a notice to it on April 19	 1951	 asking for distribution among the workers of the "25 per cent labour share of the profits on sale of machinery". By its letter dated June 19	 1951	 the appellant repudiated. the claim	 and stated: "Then we also refer you to our notice dated 27 2 1951 in which we appealed to the labour to cooperate. with us so that we might take the contract of dismantling here at Pipraich and erection at Etikoppaka and said definitely that those who do not co operate should consider themselves discharged. This would have given us a good saving to meet the demand of the labour	 but as you in spite of our appeal and notice refused to co operate	 we had to suffer a heavy loss	 for which you are directly responsible". Thereafter	 the respondent moved the Government to take action in the matter	 and the result was that on November 16	1951	 the U. P. Government issued a notification under section 3 of the U. P. Industrial Disputes Act XXVIII of 1947	 hereinafter referred to as the Act	 referring the following dispute to the adjudication of the Industrial Tribunal: "Whether the services of workmen	 if so how many	 were terminated by the concern known as Pipraich Sugar Mills Ltd.	 Pipraich	 District Gorakhpur	 without settlement of their due claims and improperly; and if so	 to what relief are the workmen concerned entitled?" By its award dated February 28	1952	 the Indus 879 trial Tribunal held firstly that the closure of the business and the sale of the machinery by the appellant was bona fide	 as it had been continuously incurring losses and the supply position of sugarcane held out no immediate prospects of improvement	 that the conduct of the workmen had been throughout unfair and such as to disentitle them to compensation but that the promise contained in the letters dated January 3 and 10	 1951	 to pay 25 per cent. of the profits realised by the sale of the Mills	 was binding on the management. It further held	 repelling the contention of the appellant	 that the notification dated November 16	 1951	 was competent	 notwithstanding that at that date the business had been closed. The Tribunal then proceeded to ascertain the profits made by the appellant on its sale of the Mills	 and held that a sum of Rs. 45	000 representing the 25 per cent. of the net profits was payable to the workmen. The management appealed against this decision but the same was confirmed by the Labour Appellate Tribunal by its order dated July 21	 1953. The matter now comes before us. in appeal under article 136. As the appeal raised questions of importance	 and as the respondent was unrepresented we requested Mr. Umrigar to assist us	 and we are indebted to him for his learned and comprehensive argument. Two contentions have been urged in support of the appeal: (1) The notification dated November 16	 1951	 referring the dispute to the adjudication of the Industrial Tribunal is ultra vires	 and the reference and the award therein are in consequence void; and (2) there was no concluded or binding agreement by the appellant to pay the workmen any share of profits in the sale transaction and the award is therefore bad on the merits. Taking the first contention	 the provision of law under which the impugned notification dated November 16	 1951	 was issued by the State is section 3 of the Act	 which runs as follows: "If in the opinion of the State Government	 it is necessary or expedient so to do for securing the public safety or convenience	 or the maintenance of 880 public order or supplies and services essential to the	 life of the community	 or for maintaining employment	 it may	 by general or special order	 make provision (d) for referring any industrial disputes for conciliation or adjudication in the manner provided in the order". An "industrial dispute"	 as defined in section 2(k) of the Industrial Disputes Act XIV of 1947 and by force of section 2	 that definition applies to the Act"means any dispute or difference between employers and employees	 or between employers and workmen	 or between workmen and workmen	 which is connected with the employment or non employment or the terms of employment or with the conditions of labour	 of any person". Now	 the contention of the appellant is that it is a condition precedent to the exercise by the State of its power under section 3 of the Act that there should be an industrial dispute	 that there could be no industrial dispute according to this definition	 unless there is a relationship of employer and employee; that in the present case	 as the appellant sold its Mills	 closed its business and discharged the workmen on March 21	 1951	 paying to them in full whatever was due in accordance with the standing orders. there was thereafter no question of any relationship of employer and employees between them that accordingly there was no industrial dispute at the date of the notification on November 16	 1951	 and that it was therefore incompetent. Reliance was placed in support of this position on the observation in Indian Metal and Metallurgical Corporation vs Industrial Tribunal	 Madras(1) that the definition of an "industrial dispute" presupposes the continued existence of the industry	 and on the decision in K. N. Padmanabha Ayyar vs The State of Madras(2) that there could be no industrial dispute with regard to a business	 which was not in existence. It cannot be doubted that the entire scheme of the Act assumes that there is in existence an industry	 (1) A.I.R. 1953 Mad. 98	 102. (2) 881 and then proceeds on to provide for various steps being taken	 when a dispute arises in that industry. Thus	 the provisions of the Act relating to lock out	 strike	 lay off	 retrenchment	 conciliation and adjudication proceedings	 the period during which the awards are to be in force have meaning only if they refer to an industry which is running and not one which is closed. In Messrs Burn and Co.	 Ltd.	 Calcutta vs Their Workmen(1)	 this Court observed that the object of all labour legislation was firstly to ensure fair terms to the workmen	 and secondly to prevent disputes between employers and employees	 so that production might not be adversely affected and the larger interests of the public	 might not suffer. Both these objects again can have their fulfillment only in an existing and not a dead industry. The view therefore expressed in Indian Metal and Metallurgical Corporation vs Industrial Tribunal	 Madras (supra) and K. N. Padmanabha Ayyar vs The State of Madras (supra) that the industrial dispute to which the provisions of the Act apply is only one which arises out of an existing industry is clearly correct. Therefore	 where the business has been closed and it is either admitted or found that the closure is real and bona fide	 any dispute arising with reference thereto would	 as held in K. N. Padmanabha Ayyar vs The State of Madras (supra)	 fall outside the purview of the Industrial Disputes Act. And that will a fortiori be so	 if a dispute arises if one such can be conceived after the closure of the business between the quondam employer and em ployees. In the light of the principles stated above	 we must examine the nature of the dispute which is the subject matter of the reference under the impugned notification. The claim of the workmen is that the promise made by the management in its letters dated January 3	 1951	 and January 10	 1951	 is a binding agreement and that they are entitled to be paid in accordance therewith. Now	 if this contention is well founded	 the dispute relates to a claim which arose (1) Civil Appeal No. 325 of 1955	 decided on October 11	 1956. 882 while the industry was in existence and between persons who stood in the relationship of employer and employees	 and that would clearly be an industrial dispute as defined in the Act. But it is argued for the appellant that even so	 the 'notification dated November 16	 1951	 would be incompetent as the industry had been closed before that date	 and there was therefore no relationship of employer and employee at that point of time. In other words	 the power of the State to make a reference under section 3 will depend	 according to the appellant	 not only on the dispute having arisen in an existing industry but further	 on the continued existence of that industry on the date of the notification. We do not find anything in the language of section 3 of the Act to warrant the imposition of this additional limitation on the power of the State to make a reference. That section only requires	 apart from other conditions	 with which we are not concerned	 that there should be an industrial dispute before there can be a ref erence	 and we have held that it would be an industrial dispute if it arises out of an existing industry. If that condition is satisfied	 the competence of the State for taking action under that section is complete	 and the fact that the industry has since been closed can have no effect on it. Any other construction would	 in our opinion	 result in serious anomalies and grave injustice. If a workman improperly dismissed raises an industrial dispute	 and before action is taken by the Government the industry is closed	 what happens to the right which the Act gives him for appropriate relief	 if the Act vanishes into thin air as soon as the industry is closed? If the contention of the appellant is correct	 what is there to prevent an employer who intends	 for good and commercial reason	 to close his business from indulging on a large scale in unfair labour practices	 in victimisation and in wrongful dismissals	 and escaping the consequences thereof by closing down the industry? We think that on a true construction of section 3	 the power of the State to make a reference under that section must be determined with reference not to the date	on which 883 it is made but to the date on which the right which is the subject matter of the dispute arises	 and that the machinery provided under the Act would be available for working out the rights which bad accrued prior to the dissolution of the business. It was next argued that even on this view	 the notification dated November 16	 1951	 was incompetent inasmuch as the management had offered by its letter dated January 3	 1951	 to pay the workmen 25 per cent. of the profits on the sale transaction only on April 30	 1951	 and the right to the amount thus accrued to the workmen only after the closure of the business on March 21	 1951. But this argument proceeds on a misapprehension of the correct position on the facts. The true scope of the promise contained in the letter dated January 3	 1951	 is that the workmen acquired thereunder a right in praesenti to 25 per cent. of the profits	 but that the amount became payable only on April 30	 1951	 the reason obviously being that it could be precisely determined only after the transaction was completed. In this view	 as the claim for share of profits arose on January 3	 1951	 and January 10	 1951	 when the industry was working	 the reference dated November 16	 1951	 would be valid	 notwithstanding that the business was closed on March 21	 1951. That brings us on to a consideration of the second question	 as to whether there was a concluded agreement binding the appellant to pay 25 per cent. of the profits in. the sale transaction to the workmen. The Tribunal has answered it in the affirmative	 and its finding was accepted by the Appellate Tribunal as	 being one of fact	 it had to be	 under section 7 of the Industrial Dispute (Appellate Tribunal) Act No. XLVIII of 1950. It is argued by Mr. Umrigar that following the usual practice of this Court in special appeals not to disturb findings of fact by Tribunals unless there were exceptional grounds therefore we should not interfere with the finding of the Industrial Tribunal that there was a concluded and enforceable agreement. But our difficulty is that the Tribunal has spoken in two voices	 and has given inconsistent 884 and conflicting findings	 and it has consequently become necessary for us to determine which of its findings should be accepted as supported by materials. We start with the letter dated January 3	 1951	 wherein the management made an offer to pay 25 per cent. of the profits of the sale transaction to the workmen. It was expressly subject to the condition that the strike should be called off "at once and today". That was not done. On the other hand	 the respondent made certain counter proposals in its letter dated January 5	 1951	 and the management replied on January 8	 1951	 that it would reconsider its terms provided the strike notice was withdrawn. Thus	 the offer contained in the letter dated January 3	 1951	 was not accepted and lapsed. Then on January 10	 1951	 the management renewed its offer subject again to the condition that the strike notice was withdrawn at once. The respondent passed no resolution withdrawing the notice	 and in its reply dated January 10	 1951	 it made it clear that it was waiting for Kashinath Pandey for it to come to a final decision '. There was no further communication from the Union. We do not see bow on this correspondence it could be held that there was a concluded agreement between the parties	 and that is the view which the Tribunal itself took of it when it observed that "no final agreement could be arrived at. . and consequently the management served a notice on 28th February 1951". But then	 it went on to observe that	 in fact	 the workmen did not go on strike on January 12	 1951	 and continued in service till they were served with notice of discharge on February 28	 1951	 that that was consideration for the promise made by the agreement	 which must therefore be taken to have become a term of service	 and that in consequence "the promise of the management as contained in the letters of 3rd and 10th January 1951	 is a binding agreement under which the workmen are entitled to compensation for termination of their services on the closure of the Mills". This argument rests on a confusion of thought. The question whether there was consideration. for the promise made by the 885 management in its letters dated January 3	 and January 10	 1951 arises only if the offer contained in the letters had been accepted by the respondent	 so as to ripen into an agreement. And if there was no concluded agreement between the parties	 as the Tribunal itself had held	 then the further question as to whether it was supported by consideration would not arise	 nor would there be any question of its becoming one of the terms of the service. It was argued that though a formal resolution withdrawing the strike was not passed	 in fact there was no strike	 and that must be taken to be acceptance of the offer by conduct. That would not be acceptance as required by the 'appellant	 and that alone would be sufficient to reject the contention of the respondent. But this contention must fail even on the merits. In its letter dated January 10	 1951	 the respondent	 while stating that the strike was not taking place on the 12th	 made it clear that this was pending the final decision of the Union. That clearly is not an acceptance of the offer. The matter does not rest there. 	 The object of the strike was	 it should be remembered	 not anything directly connected with the terms of employment but something collateral to it. It was to prevent the Mills from being removed from Pipraich to Madras. When the management offered to part with 25 per cent. of the profits of the sale transaction	 its object was clearly to disarm the opposition of the workmen and to get the machinery dismantled and delivered to the purchaser peacefully. Did the workmen ever agree to it? As late as March 5	 1951	 Kashinath Pandey wrote to the Government that if the Mills were to be shifted from Pipraich	 he would go on hunger strike. Even after the Government had informed him that the sale could not be interfered with	 the workmen did not co operate with the management in the dismantling of the machinery with the result that the appellant had to give up the contract with reference thereto and to lose Rs. 2 lakhs profits. To crown all	 the workmen having successfully prevented the appellant from getting the contract for dismantling	 themselves 886 entered into it directly with the purchaser and undoubtedly intercepted a part	 if not the whole	 of the profits which the appellant would have earned. It is impossible to hold on these facts that there was a concluded agreement between the parties binding the appellant to give the workmen a share of the profits of the sale transaction. It was next contended by Mr. Umrigar that even if there was no concluded agreement by the management to pay the workmen a share of profits on the sale transaction	 it would have been open to the Tribunal to have awarded compensation for the termination of their services	 treating it as retrench ment	 and that the 'award of compensation of Rs. 45	000 which was what the management itself had suggested	 might be sustained on that footing. This contention assumes that the termination of the services of workmen	 on the closure of a business	 is retrenchment. But 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 surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment. It is 'however contended by Mr. Umrigar that the definition of retrenchment in section 2(oo) of the Industrial Disputes Act XIV of 1947 is wide enough to include discharge consequent on the	 closure of business	 and that under section 25 F	 compensation could be awarded therefore Our attention has been invited on behalf of the appellant to the decision in J. K. Hosiery Factory vs Labour Appellate Tribunal(1)	 where it was held that retrenchment as defined in section 2(oo) does not comprehend discharge on the closure of business	 but Mr. Umrigar contends that it is erroneous. We do not consider it necessary to decide this question	 as the definition of "retrenchment" in section 2(oo) of Act XIV 1947 and section 25 F therein were inserted by the Industrial Disputes (Amendment) Act No. XLIII of 1953	 and we have held in Messrs Burn and Co.	 Ltd.	 Calcutta vs (1) A I.R. 1956 All. 498. 887 Their Workmen (supra) that this Act has no retrospective operation. The rights of the parties to the present appeal must therefore be decided in accordance with the law as it stood on March 21	 1951	 when the workmen were discharged. It was next contended	 on the strength of the decisions in Employees of Messrs India Reconstruction Corporation Limited	 Calcutta vs Messrs India Reconstruction Corporation Limited	 Calcutta(1) and Messrs Benett Coleman & Company Ltd vs Their Employees(2) that even prior to the enactment of Act XLIII of 1953	 the Tribunals had acted on the view that retrenchment included discharge on closure of business	 and had awarded compensation on that footing and that the award of the Tribunal in the present case could be supported in that view and should not be disturbed. In Employees of Messrs India Reconstruction Corporation Limited	 Calcutta vs Messrs India Reconstruction Corporation Limited	 Calcutta (supra)	 the Tribunal observed at P. 576 as follows: "Ordinarily retrenchment means discharge from service of only the surplus part of the labour force but in the case of closure the whole labour force is dispensed with. In substance the difference between closure and normal retrenchment is one of degree only. As in the case of retrenchment so in the case of closure the workmen are not responsible for closing their jobs. In both the cases	 what is called compensation by way of retrenchment relief should be admissible". We are unable to agree with these observations. Though there is discharge of workmen both when there is retrenchment and closure of business	 the compensation is to be awarded under the law	 not for discharge as such but for discharge on retrenchment	 and if	 as is conceded	 retrenchment means in ordinary parlance	 discharge of the surplus	 it cannot include discharge on ' closure of business. Moreover	 there was no question of closing of business in Employees of Messrs India Reconstruction Corporation Limited	 Calcutta vs Messrs India Reconstruction Corporation (1) (1953] L.A.C. 563. (2) 888 Limited	 Calcutta (supra)	 as what happened there was that one of the units of the company	 that at Calcutta	 was closed and that would be a case of retrenchment	 and the observations quoted above were purely obiter. They were	 however	 quoted and followed without discussion by the Appellate Tribunal in Messrs Benett Coleman & Company Ltd. vs Their Employees (supra)	 which further remarked at p. 27: "Thus whether the closure was justified or not	 the workmen who have lost their jobs would in any event get compensation. If it was not bona fide or not justified	 it may be that the measure of compensation would be larger than if it was otherwise". For the reasons given above	 we cannot assent to these observations. It	 should be mentioned that in Messrs Benett Coleman and Company Ltd. vs Their Employee (supra)	 there was no closure of business	 but winding up of the Calcutta unit by a newspaper publishing company which had its headquarters at Bombay. We must accordingly overrule this contention also. We should add that the Tribunal was of the opinion that	 apart from agreement	 the workmen should not	 in view of their conduct	 be awarded compensation	 and we entirely agree with it. And as we have found against the agreement	 we must allow this appeal	 and set aside the award of compensation to the workmen made by the Tribunal. In the circumstances	 the parties will bear their own costs throughout. Appeal allowed.

Summary:
The appellant company could not work its Mills to full capa city owing to short supply of sugar cane and got the permission of the Government to sell its machinery but continued crushing cane under a lease from the purchaser. The workmen 's Union in order to frustrate the transaction resolved to go on strike and communicated its resolution to the company. There wag correspondence between the parties in course of which the company offered to pay to the workmen 25 per cent. of the profits of the sale on condition that the strike notice must immediately be withdrawn. The workmen did not fulfill the condition and made certain counter proposals. The company insisted that the condition must first be fulfilled before the counter proposals could be considered and renewed its offer. Although the workmen did not actually go on strike	 they did not withdraw the strike notice	 and did not co operate with the management in the dismantling and delivery of the machinery to the pur chaser	 with the result that the company lost heavily. On the expiry of the lease and closure of the industry	 the services of the workmen were duty terminated by the company on March 21	 1951. The workmen thereafter	 claimed the share of profits on the basis of the offer made by the company in the correspondence and the dispute was referred to the Industrial Tribunal for adjudication by the U.P. Government by a notification under section 3 of the U.P. Industrial Disputes Act of 1947. The Tribunal held that the company was bound by the offer it had made and awarded a sum of Rs. 45	000 to the workmen as representing their share of the profits. On appeal the award of the Industrial Tribunal was affirmed by the Labour Appellate Tribunal. It was contended on behalf of the appellant company that the notification was ultra vires	 and the reference and the award void in consequence and that there having been no concluded agreement between the parties	 it was not bound to pay. Held	 that the definition of an industrial dispute contained in section 2(k) of the Industrial Disputes Act XIV of 1947 and adopted by the U.P. Industrial Disputes Act XXVIII of 1947 contemplated the 873 existence of an industry and a subsisting relationship of employer and employee between the parties and	 therefore	 there could be no industrial dispute within the meaning of those Acts where the industry had been closed	 and the closure was real and bona fide	 if the dispute arose on such closure	 or thereafter	 if that could be conceived. Section 3 of the U.P. Industrial Disputes Act of 1947 only required that there must be an industrial dispute before the Government could make a reference under that section arid	 consequently	 in the instant ease where the claim in dispute had arisen	 if at all	 prior to the closing of the industry	 the Government was fully competent to issue the notification. Indian Metal and Metallurgical Corporation vs Industrial Tribunal	 Madras (A.I.R. and E. N. Padmanabha Ayyar vs The State of Madras ([1954] 	 approved. Messrs Burn and Co. Ltd.	 Calcutta vs Their Workmen	 (Civil Appeal No. 325 of 1955	 decided on October 11	 1956)	 referred to. In the instant case	 however	 as the findings of the Tribunal were inconsistent and conflicting	 the court examined the correspondence and held that it did not establish that there was a concluded agreement between the parties whereby the workmen could be entitled to any share of the profits and	 consequently	 the award made by the Labour Appellate Tribunal must be sot aside. Nor was the award sustainable as one for compensation for termination of the services of workmen on closure of the industry as such discharge was different from discharge on retrenchment	 which implied the continuance of the industry and discharge only of the surplusage	 and the workmen were not entitled either under the law as it stood on the day of their discharge or even on merits to any compensation. Employees of Messrs India Reconstruction Corporation Limited	 Calcutta vs Messrs India Reconstruction Corporation Limited	 Calcutta ([1953] L.A.C. 563) and Messrs Benett Coleman & Company Ltd. vs Their Employees	 ([1954] L.A.C. 24)	 distinguished and disapproved.