Judgement

MITTER, J. : - This is an appeal by special leave against an award dated Tune 30, 1967 of the Third Industrial Tribunal, West Bengal, in Case No. VIII-87 of 1965 finding that the retrenchment of 12 workmen and the closure of the factory of the appellant were both illegal and unjustified. The Tribunal accordingly directed that the workers whose services had been purported to be terminated on the ground of closure must be deemed to be still in service of the company and they should receive all their wages and allowances with effect from the date when their services were terminated.

2. The two issues which were referred by the order of the Government of West Bengal dated April 23, 1965 under S. 10 of the Industrial Disputes Act between the appellant Company and their workmen were:

(1) Whether the closure of the factory at Barakar is bona fide and in the circumstances justified? To what relief, if any, are the workmen entitled?

(2) Whether the retrenchment of the following workmen is justified? To what relief, if any, are they entitled ?

(1) Kuldip Goala, (a) Chandra Bahadur (3) Gour Baidyakar, (4) Pradip Kumar Dey (5) Dular Chand Prasad, (6) Gangadhar Pandey, (7) Mahendra Bhagat, (8) Sunil Kumar Chatterjee, (9) Balai Chandra Ghose, (10) Surendra Kumbhakar, (11) Sagar Chandra Ghose, (12) Paresh Gope.

3. The facts about which there is no dispute are as follows. The appellant is a big engineering concern with its head office at Bombay and factories and establishments numbering about sixty spread all over India and Ceylon. In West Bengal it had two factories, one at Barakar and the other at Konnagore near Calcutta. The distance between the two factories is about 140 miles. The Barakar factory had about 85 workmen daily-rated as well as monthly-rated. The factory was situated quite close to Grand Trunk road. The whole area of the factory and its surroundings including the Grand Trunk road was coal-bearing land from which coal had been extracted towards the end of the nineteenth century or the beginning of the twentieth century. On December 18, 1962 there was a subsidence of the earth towards the north of the Grand Trunk road passing through Barakar town affecting a surface area of about 100 X 60 . This is corroborated by a letter of the Inspecting Officer Circle III of the Coal Board, Asansol to the Barakar Electric Supply Co. Ltd., a copy whereof was sent to the appellant. This letter shows that the subsidence had affected a part of the premises of the factory of the appellant and appeared to have a trend of extending towards the occupied quarters of the appellant s factory. Simultaneously, there was a declaration of the Mines Department of India that Barakar town near Asansol had been declared unsafe. The declaration further shows that this was the second time when the town had been so declared unsafe and according to the Mines Department this was due to the fact that the area involved was above a 70 year old abandoned colliery. It appears that there was another subsidence in the same area on May 4, 1963 as a result whereof the approach road to the appellant s factory was badly damaged. There was also damage to a portion of the manager s quarters near the factory gate. By letter dated May 15, 1963 addressed to the Chief Inspector of Mines, Government of India, the appellant wanted the site to be inspected for the purpose of finding out whether there was any chance of further subsidence. That the subsidences were real was not questioned before the Industrial Tribunal nor is there any controversy regarding the same before us. This has been referred to in many official correspondence which have been exhibited in this case: On July 18, 1963 there was a letter from the office of the Chief Inspector of Mines to the appellant that its factory was situate on a goaf made in the last part of the nineteenth century and was therefore dangerous for habitation. It was also mentioned in that letter that the factory having been declared unstab