The central legal point established in the judgment is the need to determine the closure date and the entitlement of the workmen to compensation under Section 25FFF of the Industrial Disputes Act, 1947.

JUDGMENT:

S.B. Sinha, J.

1. Delay condoned.

2. Leave granted.

3. A limited notice was issued by this Court as to whether the High Court was right in directing reinstatement of the respondents-workmen instead of directing payment of compensation in terms of Section 25FFF of the Industrial Disputes Act, 1947.

4. Appellant had a sales office at Mulji Jetha Cloth Market, Mumbai. Respondents-workmen were employed therein. The said shop was closed. The factum of the closure of the shop is not in dispute. What is disputed is as to whether it was done in the year 1983 or 1991. Upon closure of the said shop, the respondents were transferred to work in a factory at Goregaon which did not belong to the respondents. An application for payment of wages was filed against the appellant before the Prescribed Authority. The said application was dismissed, inter alia, on the premise that the respondents had refused to join their duties at the transferred place. A domestic enquiry was purported to have been held in April, 1984 on the premise that the respondents had neither reported for duties at Goregaon nor at Mumbai. The services of the respondents were terminated in December, 1985. In January, 1986, the premises in which the sales office was being run was admittedly handed over to another Company.

5. An industrial dispute was raised by the respondents demanding their reinstatement with full back wages as well as continuity in services. A reference was made by the appropriate Government.

6. A preliminary issue was raised as to whether in the said reference, the domestic enquiry conducted against the respondents was fair and proper. The said preliminary issue was decided in favour of the employer and against the workmen by an order dated 5.12.1996. The parties to the reference, thereafter adduced their evidences before the Industrial Court.

7. By an award dated 31.7.1996, the Presiding Officer of the Labour Court, Mumbai held that the termination of the services of the respondents was proper and valid and, thus, were not entitled to any relief. Questioning the correctness of the said award, the workmen filed writ applications. A learned single Judge of the High Court of Bombay allowed the said writ petitions being W.P.No.1693 of 1997 and W.P.No.1691 of 1997 by a judgment and order dated 30.08.1999 setting aside both the awards opining:-

I do not find any merit in the contention advanced on behalf of respondent No.1. Firstly, as stated hereinabove, there is nothing to show that a proper Domestic Enquiry has been held. Secondly, there is no evidence on record to indicate that transfer constituted service condition. Thirdly, the evidence on record clearly indicates that Khanna Textile Industry was a separate legal entity vis-`- vis respondent No.1 and under the circumstances, the workman cannot be asked to join separate legal entity. I have gone through the entire record. There is no proof to show that the findings of the Enquiry Officer were forwarded to the chargesheeted employee. The findings on record show that the petitioner was asked to work for a separate legal entity, without terminating his services in accordance with law and without paying him compensation under Section 25-F of the Industrial Disputes Act, 1947. He was also not paid gratuity. He was also not paid wages during the period when the Enquiry was going on. Taking into account the above facts, the Labour Court erred in dismissing the Reference .

8. An intra court appeal was preferred thereagainst wherein, inter alia, a contention was raised by the appellant that the sales office of the appellant having been closed, no award of reinstatement could have been passed. The said appeal was dismissed by a Division Bench of High Court by reason of the impugned judgment dated 11.01.2000. A review application preferred thereagainst has also been dismissed by an order dated 17.01.2003.

9. Mr. Shekhar Naphade, learned senior counsel appearing on behalf of the appellant, submitted that ke