Judgment

GROVER, J.: This is an appeal by special leave against the award of the Special Industrial Tribunal, Orissa, in which the principal question which has to be determine is whether there was a closure of its undertaking by the appellant Company pursuant to a notice issued on October 3, 1967, to its workmen on account of the Gherao, if it is permissible to use that expression, of the staff and Officers of the Company in its Administrative Office building from about 2 P. M., of October 1, 1967 till 5 A. M. of the morning of October 2, 1967, and if it was not a closure whether there was a refusal by the management of the Company to employ its workmen amounting to a lock out.

2. The material facts may be succinctly stated. The appellant is a public Company having its registered office at Choudwar in the district of Cuttack. It maintains some branch offices at Calcutta and Madras. It carried on the business primarily of manufacturing and selling iron pipes and poles and has been employing a large number of workmen, their number being 922 on the relevant date. According to findings of the Tribunal, which have not been questioned it is a prosperous concern an between the years 1959 and 1964 the appellant paid its employees bonus equivalent to four months wages every year except in 1961-62. For the subsequent three years bonus was paid at the rate of four per cent under the Payment of Bonus Act, 1965 (Act XXI of1965). The workmen were not satisfied with the payment at the rate of four per cent an raised a dispute. On August 22, 1965, they made a demand for bonus at the rate of 20 per cent of their annual salary or wages for the accounting year 1966-67. Certain correspondence started between the Assistant Labour Commissioner, the Management and the General Secretary of the Union (Kalinga Tubes Mazdoor Sangh). On September 21, 1967, the Manager (Administration) notified that bonus at the rate of 4 per cent for the year 1966-67 had been sanctioned by the Management. The General Secretary of the Union asked the Manager to review the above notice and to send a copy of the balance sheet for the accounting year in question. On September 25, 1967, the District Labour Officer informed the Manager that he had fixed October 2, 1967, (11 A. M.) for discussion in the matter of the payment of bonus. The Manager sent a copy of the balance sheet to the General Secretary of the Union on October 1, 1967. On that day the General Secretary asked the Assistant Labour Commissioner to examine the profit and loss account for the year 1966-67 and to apply the requisite formula under the Payment of Bonus Act. On October 1, 1967 about 150 workmen assessmbled after 2 P. M. at the gates of the Administrative Building in which about 40-47 members of the staff were present. They were not allowed to leave the Building till 5 A. M. next day. Meanwhile the Officer-in-charge Choudwar Police Station, Executive Officer, Notified Area Council, Choudwar (a First Class Magistrate), the Additional Superintendent of police, Cuttack, the Sub-Divisional Officer Sadar Cuttack and the Assistant Labour Commissioner went to the place where all this was happening. The factory remained closed on October 2, 1967 on account of Gandhi Jayanti. On the morning of October 3, 1967 the Management issued a notice declaring a closure of the factory. It is common ground that uptill now the factory has remained closed. The Management offered to pay wages for one month in lieu of notice and reduced compensation under the proviso to sub-section (1) of Sec. 25-FFF of the Industrial Disputes Act, 1947 (hereinafter called the Act). It has not been disputed that out of 922 workers, 613 workers accepted compensation under the aforesaid provision. The remaining workmen, however, neither agreed to nor accepted any compensation. The reference under the Act was made on November 3, 1967 by the Government of Orissa primarily for adjudicating whether the appellant had declared a lock out by means of the n