JUDGMENT Sunil Ambwani, J.
1. I.O.L. Ltd. is a company registered under Companies Act, 1956 with its registered office at Oxygen House P-43, Taratala Road, Calcutta. One of the establishment of the company is situate at North Factory Area, Off. Kalpi Road, Kanpur. Petitioner Nos. 2 to 13 were Directors and Officers of the company and petitioner No, 1.3 is the General Manager, Northern Region and have challenged notices Issued dated January 17, 1991, by Additional Labour Commissioner, U. P., Kanpur Region, Kanpur, Under Section 25R of the Industrial Disputes Act, 1947 (in short. Central Act), to show cause as to why petitioners may not be prosecuted for violating the provisions of Section 25O of the Central Act by declaring closure of Its establishment on 10.1.1994 without seeking permission of the State Government.
2. The facts stated in the writ petition are that the unit at Kanpur was engaged in production and distribution of Oxygen Dissolved Acetylene Gases with its Sales Depot at Lucknow. The establishment at Kanpur became uneconomic for several years, and its viability suffered serious setback. The workmen had demanded change in the method of calculation of dearness allowance and its Increase. The matter was adjudicated by the Industrial Tribunal and went up to the Supreme Court. It was pleaded before the Supreme Court that it should give a formula in accordance with which the Kanpur cost living index may be converted into All India Consumers price Index-Simla series. The Supreme Court gave a formula on the basis of which the amount should have been calculated. The company calculated it in accordance with said formula, which was challenged in a contempt application before the Supreme Court. At the hearing the Supreme Court suggested that it being a case of Implementation of award of Industrial Tribunal which was upheld up to the Supreme Court with certain modifications, the workmen should make application under Section 33C(2) of the Central Act to get their claims computed in terms of money. Thereafter workmen appeared before the Labour Court, Kanpur. which passed certain orders against which petitioners came to the High Court and thereafter went to Supreme Court where it was agreed that the controversy may be decided by Mr. Justice O. Chinnappa Reddy. He upheld the order of the labour court. The review application of the orders of Mr. Justice O. Chinnappa Reddy was not accepted,
3. The company found that the award made with retrospective effect, i.e. w.e.f. 1st April. 1977, favours payment of arrears exceeding Rs. 4 crores to the workmen at Kanpur establishment. The company is alleged to have borrowed at considerable rate of interest to discharge the enormous liability in October, 1990. The impact of clearness allowances caused staggering losses and the revised dearness allowances as determined by award caused burden on the company making the establishment at Kanpur unvlable. In order to save future of about 5,000 employees at its other units in the country the company decided to close the establishment at Kanpur and Lucknow. A notice dated 7.11.1990 was served upon the State Government with statement of reasons for closure of the factory at Kanpur with effect from 10.1.1991. It is alleged in paragraph 13 at that time the establishments at Kanpur and Lucknow were employing 156 employees. The notice was under Section 25FFA of the Central Act. The second paragraph of this notice stated, that it is given as a measure of abundant caution without prejudice to their right contentions, notwithstanding the fact that no such notice is contemplated under the provision of U. P. Industrial Disputes Act, 1947 (in short. State Act).
4. After hearing the aforesaid notice the company terminated the services of its employees who were on permanent rolls on 10.1.1991, and it is alleged that full retrenchment composition and wages in lieu of one month's notice was paid to them. Thereafter the factory was closed down permanently with effect from 10.1.1991 with only 61 employees remaining, out of 156 employees, as rest of the workmen had taken voluntarily separation on their own accord under the companies voluntarily separation scheme. Before the closure was effected the State Government called the parties for discussion on 7.11.1990, and that by notice dated 5.1.1991, the State Government Informed that on the declaration of the number of employees in its notice dated 7.11.1990 which were stated to be 156, the closure under Section 25O of the Central Act with effect from 10.1.1991 was unlawful. The company replied on 7.1.1991, seeking reasons for declaring the closure to be unlawful. The State Government once again informed the Plant Manager of the company that the action of closure is illegal and the workmen are opposed to it. Thereafter show cause notices were issued by the Deputy Labour Commissioner for prosecution of the Directors and Plant Manager under Section 25R of the Central Act.
5. By an interim measure dated 1.2.1991 it was directed that no prosecution shall be launched against petitioners in pursuance of notice dated 17.1.1991. The writ petition connected with a batch of writ petitions by judgment and order dated 17.8.1992 given in Writ Petition No. 4206 of 1991. I.O.L. Ltd. v. State of U. P. were allowed. Following the judgment in Jay Shree T. Ltd. v. Industrial Tribunal (1), Allahabad and Anr. 1990 (60) FLR 608, by which Section 6W of the State Act was declared to be ultra vires and as violative of Article 19(1)(g) o f Constitution of India. It was also held that the amended Section 25O of the Central Act was violative of Article 19(1)(g) of Constitution of India, and was therefore, unconstitutional. The Court followed the judgment in Excel Were v. Union of India. AIR 1979 SC 25. Aggrieved, the State Government filed Special Leave Petition (Civil) No. 18166 of 1996 from the Judgment and order dated 17.8.1992 in both the connected Writ Petition Nos. 3010 of 1981 and 4206 of 1991. The special leave was granted and the matter was registered as Civil Appeal No. 533 of 2002. It was connected along with batch of writ petitions led by Orissa Textile and Steels Ltd. v. State of Orissa and Ors., and it was decided by Constitution Bench of the Apex Court on 17.1.2002 reported in (2002) 2 SCC 578. The Supreme Court relying upon the principles laid down in Workmen v. Meenakshi Mills Ltd., (1992) 3 SCC 336, upheld the validity of Section 25O of the Central Act, as also Section 6W of the State Act which is in simitar terms. Having decided the validity of Section 25O the Constitution Bench sent the matter back to Division Bench for decision in accordance with law. The Division Bench of the Supreme Court by its order dated February 5, 2002, allowed the special appeal filed by State in so far as the constitutional validity of the provisions is concerned and remanded the matter back to this Court for deciding it in accordance with law. The matter with reference to Civil Appeal No. 533 of 2002 is quoted as below :
"By a common order the High Court disposed of three writ petitions. One of the questions raised and decided by the High Court is constitutional validity of Section 6W of the U. P. Industrial Disputes Act, 1947. A Constitution Bench of this Court in C.A. No. 529 of 2002, Orissa Textile and Steel Ltd. v. State of Orissa and Ors. and other connected matters in which the constitutional validity of Section 25O of Industrial Disputes Act identical to Section 6W of the U. P. Industrial Disputes Act, 1947, was challenged has upheld the validity of the same. The Constitution Bench having upheld the validity of the said provisions, the finding of the High Court to the contrary is reversed.
In addition, it is pointed out that in C.A. 532 of 2002 another contention was raised that the said provision of Section 6W of the U. P; Industrial Disputes Act is not applicable inasmuch as there are less than 300 workmen. Whether it is so or not need not be examined by us."
6. An application was filed to correct a typing error which was allowed on 28.2.2002 as follows :
"At page 4, paragraph 2 of the order dated 5.2.2002, instead of words "C.A. No. 532 of 2002", C.A. No. 533 of 2002. shall be read.
At the last page of the order after the words, "C.A. No. 533 of 2002, arising out of W. P. No. 3010 of 1991 filed by the State is allowed and shall stand remitted to the High Court for fresh consideration in accordance with law on the points not decided by us" shall be treated to have been inserted.
I. A. No. 4 is allowed accordingly."
7. The matter was, thereafter, received by this Court and by orders of Chief Justice dated 4.3.2003 in connected Writ Petition No. 34517 of 1996 the entire batch of matters was nominated to this Court. It was adjourned on the joint request of the parties on 26.3.2003, 22.4.2003, 13.5.2003, and was thereafter heard on 28.7.2003 and 30.7.2003. Arguments were concluded and orders were reserved on 31.7.2003.
8. I heard Sri S.N. Verma, senior advocate assisted by Sri P. K. Mukherjee and Sri Prem Chandra for petitioners and Sri K. P. Agarwal, senior counsel for I.O.L. Ltd. Sri S.N. Verma, senior advocate submits that on account of increase of liabilities of dearness allowances due to award as above, the company was saddled with a liability of more than Rs. 4 crores. The unit thus became unviable. The company, however, paid of the enormous liability in October, 1990 and thereafter taking overall view of the matter, and the high Increase in the wages which were enhanced from Rs. 54 lakhs to Rs. 1.40 crores per annum, it was decided to close down the establishments at Kanpur and Lucknow. The company offered voluntary separation scheme which was accepted by most of the 156 employees, except only 61 employees. Although Section 6W had been declared ultra vires in Jay Shree T. case (supra) the company by way of abundant caution gave a notice of closure with the statement of reasons on 7.11.1990, for closure of their factory at Kanpur with effect from 10.1.1991. On the date of notice it had 156 employees who were reduced to 61 employees on the date of closure on 10.1.1991. The State Government did not give any reason in its intimation, declaring the proposal to be unlawful.
9. Sri Verma thereafter submits that even after the decision of the Supreme Court in Orissa Textile case (supra) declaring Section 25O of Central Act as well as Section 6W of the U. P. Act, as valid and intra vires the Constitution of India, the provisions of closure permission for closure as provided under Section 6W of the State Act are not applicable. According to him Section 6V, apply Section 6W and Section 6X to an industrial establishment pertaining to industries other than the industry referred to in Sub-clause (i) of Clause (a) of Section 2 of the Central Act, not being an establishment for seasonal character and in which the work is performed intermittently, in which not less than 300 workmen are employed on an average per working day, in preceding twelve months. According to Sri S.N. Verma only 156 workmen were employed on the date the notices were given and closure were effected. The Central Act, provides for permission for closure in respect of establishment, having not less than 100 workers is not applicable, in the present case. He submits that the subject being in concurrent list, and the amendments of U. P. Act 26 of 1983 having received the assent of President on October 10, 1983, and published on 12.10.1983 will override the provisions of Central Act. He has relied upon Article 254(1) of the Constitution of India. In the present case, according to him, the petitioner industry is not an industry covered by Section 2(i)(a) of the Central Act, and thus, the appropriate Government is State Government. He submits that the matter is squarely covered by Judgment of this Court in Engineering Kamgar Union v. Deputy Labour Commissioner, Ghaziabad, 2000 LLR 22. In the alternative he submits that Section 25R imposes a criminal liability which is to be determined from the date when the alleged act was committed and that on that date Section 6W was declared invalid and thus petitioner cannot be prosecuted.
10. Sri K.P. Agarwal appearing for workers union, on the other hand, submits that notice for closure was not in accordance with law. The requirement of Section 6W of the U. P. Act were not complied with. The workmen were not given any opportunity to present their case against closure. He submits that the writ petition against show cause notice is not maintainable in law and that the judgment !n Engineering Kamgar Union (supra) requires reconsideration. He has also challenged the capacity of the petitioner to run the unit and submits that there were sufficient funds at the disposal of the company to run the unit for profit.
11. Having carefully considered the submission made by senior counsels, I find that this case is covered by the Judgment of this Court in Engineering Kamgar Union v. Dy. Labour Commissioner, Ghaziabad, 2000 LLR 22. The establishment is covered by the State Act. It was held by Supreme Court in U. P. State Sugar Corporation Ltd. v. Om Prakash Upadhyay, 2002 (93) FLR 600, that by virtue of Section 31 of the Industrial Disputes (Amendment and Misc. Provisions) Act, 1956 (Act 36 of 1956), the Act does not override State law. There is clear inconsistency between Central Act and the State Act with regard to applicability of Section 6W in the State Act and Section 25O of the Central Act. Whereas Section 6W of the State Act is applicable where there are more than 300 workmen are employed in the establishment Section 25O is applicable where the establishment employs more than 100 workmen. It was held in Engineer Kamgar Union as follows :
"The repugnancy lies in the number of workmen engaged to make the law on the point of closure applicable to an industrial undertaking. Chapter V-B of the Central legislation makes the provision of closure applicable to a industry in which not less than 100 workmen were employed on an average per working day for the preceding 12' months. For resolving this repugnancy, we must look to the dates of enactment of the relevant provisions and, as aforesaid, to the provisions of Article 254 of the Constitution. Limiting the number of workmen to about 100 for application of Chapter V-B of the Central Legislation was made by Act No. 46 of 1982, which has been given effect from 21.8.1984 and the provisions of Section 6V of the State Act through which Section 6W has been made applicable in the State was introduced by State Act No. 26 of 1983 and has been given effect from 3.8.1983. It is not denied that this Amending Act 26 of 1983 as also the Industrial Disputes Act had received assent of the President and the Governor General respectively.
10. Article 254 of the Constitution speaks that If there be any inconsistency between the laws made by Parliament and those made by the State Legislatures, in a matter covered in the concurrent list then, subject to clause 2, the law made by the Parliament shall prevail and the State Legislation to the extent of repugnancy shall be void. Clause 2 of this Article, however, states that where a law made by the Legislature by a State with respect to one of the matters enumerated in the concurrent list contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then the law so made by the Legislature of such State shall, if it has been reserved for the consideration of President and has received his assent shall prevail in the State. It further provides that nothing in this clause shall prevent the Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
In view of the admitted facts that the State Legislation in the instant case had received the assent of the President and was made subsequent to the Central amendment, the only question we are confronted with is whether the Central Law given effect to in 1984, although made in 1982, would be deemed to be a second legislation to repeal the State Law.
In this context reference was made to a decision of 3 Hon'ble Judges of Supreme Court in the case of Pt. Rishikesh and Anr. v. Salma Begum, (1995) 4 SCC 718. This very question as posed above was under consideration by the Supreme Court. It was observed that repugnancy or inconsistency depends upon when the laws are "made" and not when the laws are "commenced". The law is made by a Parliament or State Legislature as soon as the assent was given to it by the President or Governor and the Act is published in the official Gazette.
Under the above interpretation Section 25O of the Central Legislation was made in 1982 notwithstanding its being given effect in 1984. The State legislation was made in 1983 and there was no further legislation by Parliament to affect the State Legislation in any manner to be covered by the proviso to Clause (2) of Article 254 of the Constitution.
Upon all these considerations, it is held that there is a repugnancy between Section 6W of U. P. Industrial Disputes Act read with Section 6V thereof and Section 25O read with Section 25K of the Industrial Disputes Act, 1947 and the State Legislation having been made subsequent to Central Legislation and the State Legislation having the assent of the President, it will be applicable in the State of Uttar Pradesh notwithstanding the provisions of Section 25K and Section 25O of the Central Legislation. As a logical corollary, it must be held that for closure of an industrial establishment where 300 workmen were not working will not be required to give the requisite information to the State Government as per Section 6W and despite an objection by the employers, the local Labour Law Enforcement Authorities failed to appreciate this point and had not only issued a show cause notice but had also taken follow up actions by way of Issuance of recovery certificates."
12. The judgment in M. P. S. Shikshak Congress and Ors. v. R.P.F. Commissioner, Jabalpur, (1999) 1 SCC 396, has no application to the present case inasmuch as there was no repugnancy in the case between State Act and Central Act, for applicability of Provident Fund Scheme for school teachers in Madhya Pradesh, until the Central Act was enforced on 6.3.1982 much after the State Act 20 of 1978 became applicable. The test, as laid down, by Supreme Court is that Article 254(2) will be applicable when the repugnancy comes into play. In the present case repugnancy arose as soon as the State Act No. 26 of 1983 was given effect to on 3.8.1983. The date of enforcement of Central Act, i.e., 21.8.1984 will not be the relevant date and thus the judgment in Pt. Rishikesh v. Salma Begum, (1995) 4 SCC 718, will be applicable in the case on hand.
13. Section 25O of the Central Act with regard to closure comes under Chapter VB of the Act. Section 25S provides that provisions of certain sections of Chapter VA will apply to Chapter VB including Section 25J of Chapter VA, but Sub-section (2) of Section 25J provides that nothing contained in the said chapter will affect provisions of other laws, in relation to lay off and retrenchment. The section, therefore, does not affect the provision of closure for which State Act has incorporated Sections 6V and 6W.
14. The present case is, therefore, covered by the State Act, The provision of the Section 6W, providing for prior permission for closure, are applicable only when the industrial establishment pertaining to an industry, employs not less than 300 workers, on an average per working day, in preceding twelve months. Although Sri K.P. Agarwal has disputed about the number of workmen, I find that the number of workmen given in paragraphs 13 and 15 are not denied in the counter-affidavit of Sri P. K. Singh, Secretary, Indian Oxygen Karamchari Union. In the second counter-affidavit filed by Sri Sant Raj Singh also these numbers have not been denied. In any case, we are concerned with the matter of prosecution of the Directors and Officers of the company. The notice for prosecution under Section 25R specifically refers to number of workmen. The notice begins with a sentence that there are about 156 workmen employed in your establishment. This number may have been taken from the notice given for closure by the company. The labour department had material available with them on the reports submitted under the Factories Act. The notice was, therefore, given on the material available on record and on such material, the notice for prosecution could not have been given under Section 25R of the Act.
15. Where the conditions imperative for exercising jurisdiction are missing, the notice on the basis of such exercise is illegal. In Assistant Collector of Central Excise, Calcutta Division v. National Tobaco Company of India Ltd., (1972) 2 SCC 560, the Supreme Court allowed the question, whether notice falls within Rule 10A of Central Excise Rules, placing the burden approving the validity of notice upon petitioners. Alternative remedy is not an absolute bar to entertain writ petition under Article 226 of the Constitution of India, especially in cases where the authorities against whom the writ is filed is shown to have no jurisdiction and had purported to usher jurisdiction without any legal foundation. In Whirl Pool Corporation v. Registrar of Trade Marks, Mumbai, 1999 (2) AWC 2.54 (SC) (NOC) : JT 1998 (7) SC 243, the Supreme Court held a show cause notice issued by Registrar when the proceeding pending before High Court, were without jurisdiction. It was held that where High Court has exercised its Jurisdiction, the jurisdiction of the Registrar for rectification of the register stands excluded. In the present case, we find that the Dy. Labour Commissioner had no authority to Issue notice for prosecution under Section 25R inasmuch as the Central Act was not applicable and in any case, the condition requisite for issuing the notice about the number of workmen. on the material available on record, did not confer upon him Jurisdiction to give such notice.
16. For the aforesaid reasons, the writ petition is allowed. The notices dated 17.1.1991 issued by Additional Labour Commissioner, U. P., Kanpur Region, Kanpur (Annexures-1A to 1L) are quashed. There shall be no order as to costs.