The burden of proof in cases of illegal closure lies with the party alleging the illegality, and the court must consider the nature of the fact required to be proved and its importance in the controversy.

JUDGMENT

S.C. Gupte, J. - This petition challenges an order passed by the Industrial Court at Pune allowing a complaint of unfair labour practice. The complaint, filed by the Respondent union, challenged a notice of closure given by the Petitioner management. By this notice, one of the two divisions of the company at its factory at Chakan, Pune, namely, diecasting division, was proposed to be closed. It was the case of the Respondent union that this closure was sham and was, in fact, an illegal lockout amounting to an unfair labour practice under Item 6 of Schedule II and also under Items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("PULP Act").

2. It is the case of the Petitioner management that at its Chakan factory, it had two distinct undertakings, namely, the diecasting factory and the fan factory. The two factories, called divisions, were located in separate premises and buildings though within the same complex. The diecasting division employed about 34 workmen. There was no interchange or transfer of workmen from one division to another; the diecasting division had separate machinery which was not required for manufacturing of components for the fan division; and that the two divisions were totally distinct and separate, with no functional integrality between the two. It is the case of the Petitioner that ever since inception, when the Petitioner only had the diecasting division in its factory, heavy losses were incurred year after year and as a result, the financial position of the company became weak. The Petitioner submits that, in the premises, the Petitioner decided to close the diecasting division and enter into a noncompete agreement with a rival manufacturer of diecasting in consideration of a sum of Rs. 3.24 crores to be paid by the latter so as to enable the Petitioner to wipe out some losses and meet liabilities of the diecasting division, including dues payable to the workers and staff towards the closure. The Petitioner, accordingly, effected closure on 18 October 2002 and paid legal dues to the workmen of the diecasting division. The workmen accepted the dues under protest and thereafter filed the present complaint of unfair labour practice through the Respondent union. This complaint was on behalf of all 34 workmen of the diecasting division. It was the case of the union in its complaint that there were no separate diecasting and fan divisions, but the Petitioner was one unitary establishment employing more than 100 workmen and was, accordingly, bound to seek prior permission of the appropriate Government for closure. The closure purportedly effected by the Petitioner without such permission was violative of Section 25O of Chapter VB of the Industrial Disputes Act, 1947 ("ID Act"). Pending the hearing of the complaint, the Petitioner, however, was allowed to effect the closure. A writ petition was filed by the Petitioner before this court seeking permission to dispose of the machinery of the diecasting division which was lying idle. That permission was granted subject to deposit of Rs. 30 lakhs towards the amount realized from the sale of the machinery in the Industrial Court. As for the merits of the Union''s case on prior permission, it was mainly contended by the Petitioner establishment that there were less than 100 workmen working with the concerned undertaking and as such, the provisions of Chapter VB were not applicable. The Petitioner''s case was that firstly, the two divisions, namely, the diecasting division and the fan division, were separate undertakings with no interdependence or functional integrality between the two and secondly, and at any rate, even if the two undertakings were to be treated as one unitary establishment, the requirement of employment of minimum 100 workmen was not satisfied in the case. It was submitted that having regard to the nature of duties performed by the employees of the company and, par