Nishita Mhatre, J.
1. The petitioners have challenged the order of the Industrial Court dated 21-7-1999 whereby it has come to the conclusion that the petitioners have engaged in an unfair labour practice under Item 6 of Schedule IIand Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
2. The facts giving rise to this petition are as follows :
On 29-9-1992, the petitioners commenced a private amusement park which was registered under the Bombay Shops and Establishment Act, 1948. About 205 workmen were employed in different categories in the Amusement Park (hereinafter referred to as 'the Park') including persons in the top management. About 191 of these persons were workmen whom the petitioners claim are the members of the respondent No. 2 union. During the monsoon season in 1993, the Park remained closed for a period of 3 to 4 months. The workmen were treated to be on leave without pay. All the workmen were given employment, when the activities of the Park were resumed on the monsoon receding. The following year, the petitioners issued a notice of temporary closure on 30-6-1994 on account of the monsoon. The petitioners stated in the notice that they would inform the workmen the date and time for reporting for work and they also informed the workmen that the salary for the month of June 1994 would be paid on 7th of the next month, as usual.
3. On 8-7-1994, a notice of closure was issued under Section 25-FFA of the Industrial Disputes Act. All the workers, according to the petitioners, were members of respondent No. 2 Union. On 14-7-1994, the petitioners informed individual workmen that their services have been terminated as the Board of Directors had unanimously resolved to close down the establishment, and its business permanently and irrevocably. Closure compensation and notice pay was offered to the workmen. On 20-7-1994, respondent No. 1 informed the petitioners that a large number of workers of the Park were no longer members of respondent No. 2 union as they owed allegiance to respondent No. 1. This intimation was received by the petitioners on 25-7-1994.
4. A complaint was filed by respondent No. 2 on 27-7-1994 under Items 9 and 10 of Schedule IV and Item 6 of Schedule II alleging that the petitioners have effected an illegal closure w.e.f. 14-7-1994. A similar complaint was filed by respondent No. 1 on 29-7-1994 annexing a list of 90 workmen whom they claimed to represent. A third complaint was filed by another union on behalf of some workmen claiming the same reliefs as in the other complaints. It appears that the petitioners settled the dispute with respondent No. 2 on 26-9-1994. Respondent No. 2 accepted the fact that the petitioners had closed down the Park irrevocably and the workers who were its members were ready and willing to accept the amounts payable under the settlement. About 166 workmen accepted this settlement which was signed by the Chairman of the petitioners and the President of respondent No. 2 union. Under Sections 2(p) read with 18(1) of the Industrial Disputes Act (hereinafter referred to as 'the Act') on 26-9-1994.
5. As per this settlement, the petitioners had permanently and irrevocably closed down the Park and this closure was binding on all the workmen. Only 166 of the 199 workmen accepted the closure and the amounts offered under the settlement. The settlement stipulated that the remaining 25 workmen affected by the closure had agreed to accept the dues payable under terms of the settlement and the petitioners agreed to deposit the notice pay, closure compensation as if retrenched and other legal dues in the Industrial Court. It was further agreed thatin consideration of the settlement and in satisfaction of all other legal provisions, the petitioners would pay each of the workman one month's additional pay in lieu of notice. It was also stipulated that the consideration of this amount being paid, the subject matter of closure has to be treated as resolved and the dispute was settled amicably between the parties and that the Union and the workmen would have no claim monetary or otherwise against the petitioners. Clause 4 of the settlement made it clear that no workman affected by the closure would be entitled to raise a dispute if the petitioners ever reopen the Park. This settlement was filed before the Industrial Court on 27-9-1994 in complaint (ULP) No. 774 of 1994 that is in the complaint, filed by respondent No. 2. The complaint was disposed of by the Industrial Court as settled as per the Settlement dated 26-9-1994.
6. The petitioners had made an application for clubbing together the two complaints filed by respondent Nos. 1 and 2. However, this application was made only in the complaint filed by respondent No. 1 and not as required under Rules and Regulations framed under the MRTU & PULP Act before the President of Industrial Court who has the powers to transfer complaints or to club together complaints pending before two Members of the Industrial Court, for being heard by one Industrial Court if it is expedient to do so. This application was presumably, therefore, rejected.
7. On 8-9-1994, that is before the settlement under Section 2(p) of the Industrial Disputes Act was entered into between respondent No. 2 and the petitioners, an agreement was signed between the petitioners and Best Eastern Hotels Ltd. whereby the running of the Park was licenced to the latter. The recitals of this agreement state inter alia that the petitioners had closed dawn the Park w.e.f. 14-7-1994 and that the services of all employees have been terminated by paying all the dues. Soon thereafter on 22-10-1994, the Park was reopened although the licensee was permitted to commence the business on 15-9-1994 itself. The licence for running the Park was given for a period of 25 years. However, the agreement was cancelled by deed of cancellation of 15-6-1995.
8. The petitioners filed an application before the Industrial Court for dismissing the complaint filed by respondent No. 1 as all the workmen had accepted the closure and also accepted the amounts tendered to them along with their letters of termination. However, respondent. No. 1 disputed this and filed documents showing the membership forms signed by the workmen as also the copies of resignation letters of the workmen from membership of respondent No. 2, forwarded to the President of respondent No. 1. These documents were produced to show that respondent No. 2 did not represent the workmen any more. The interim relief application filed by respondent No. 1 was rejected by the Industrial Court and immediately on the next date, the Park was reopened. Evidence was led by the petitioners as well as respondent No. 1 in the complaint. The petitioners examined their Chairman and respondent No. 1 and two workmen. The Industrial Court on the basis of the oral and documentary evidence declared that the petitioners had engaged in unfair labour practice under Item 6 of Schedule II and Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The petitioners were directed to reinstate the workmen concerned in the complaintexcept three of them whose services were terminated on account of disciplinary proceedings. The Industrial Court also directed that back wages w.e.f. 4-6-1994 onwards were to be paid within one month of the date of the order.
9. Being aggrieved by this order, the petitioners have approached this Court under Article 226 of the Constitution of India. The petitioners have assailed the order on mainly two counts, namely, res judicata and that as a majority of the workforce had accepted the terms of the agreement, dated 29-9-1994, respondent No. 1 has no locus or justification to dispute the same. Amplifying the first question regarding res judicata, the learned Counsel for the petitioners submits that by the order in complaint (ULP) No. 774 of 1994 filed by respondent No. 2, the Industrial Court, disposed of the complaint in terms of the settlement and hence, the next complaint filed by respondent No. 1 on similar grounds for identical reliefs was not maintainable as the findings in the earlier complaint could not be reagitated in the second complaint i.e., the complaint filed by respondent No. 2. It is submitted that the settlement signed between the petitioners and respondent No. 2 had been accepted by the Industrial Court in the first complaint and it was for this reason that the complaint had been disposed of as settled. This settlement, according to the petitioners, has not been challenged by respondent No. 1 at any point of time and, therefore, has a binding effect on all the workmen employed by the petitioners. The next submission made is that the parties to the dispute in both the complaints are the petitioners on one hand and the body of workmen on the other. The workmen may be represented by different unions but once the workmen had accepted the closure in view of settlement dated 26-9-1994, the workmen could not reagitate the same issue through different unions. It is then submitted that the closure has been accepted by the workmen and no question could be raised regarding the closure as this would be barred by the principle of issue estoppel. Further it is submitted that respondent No. 1 has not been able to prove that the 90 workmen enlisted in the annexure of their complaint had resigned from respondent No. 2 and joined respondent No. 1 union. On the question of locus of respondent No. 1 to agitate the issue regarding closure, it is argued that the settlement has been accepted by a large majority of workmen and, therefore, binds all workmen irrespective of whether they are members of the union who signed the same or not.
10. Adverting to the first issue regarding res judicata, it is not in dispute that the doctrine of res judicata or principles analogous to res judicata do apply to industrial adjudication. It has been so held in the case of Burn & Co., Calcutta v. Their Employees reported in : (1957)ILLJ226SC and the case of Bharat Barrel & Drum . v. Bharat Barrel Employees Union reported in : (1987)ILLJ492SC . However, the question is whether on the facts and circumstances present before me, the principles of res judicata do in fact apply. In the instant case, the agreement signed under Section 2(p) and 18(1) of the Industrial Disputes Act were entered into on 26-9-1994 and a consent order was obtained on 27-9-1994 from the Industrial Court which stated that the complaint is disposed of as settled as per the settlement dated 26-9-1994. Whether this would amount to an order of the Court deciding the issues contained in the agreement is in question. If the principles of res judicata are to apply, there must be a final determination of the dispute between the parties in a Court competentto try such an issue and which has been determined after being finally heard by the Court. Therefore, the issue in question is required to be heard by the Court and it is necessary for the Court to pass an order thereafter determining the issues. In the present case, what is decided by the Court is only that the complaint should be disposed of in view of the parties having arrived at a settlement. This does not mean that the Court has given any decision on the issues between the parties or that the settlement between the parties had the imprimatur of the Industrial Court.
11. The learned Counsel for the petitioners has submitted that the order of the Industrial Court disposing of complaint (ULP) No. 774 of 1994 in view of the settlement between the parties is nothing but an order of the Court. He draws my attention to the decision of the Apex Court in the case of Speed Ways Picture Pvt. Ltd. and Anr. v. Union of India and Anr. reported in : [1991]3SCR472 where the Apex Court has considered the issue and held that 'consent terms' and 'minutes of order' stand on different footings. The Apex Court has observed that 'minutes of order' are prepared by parties and tendered as a courtesy to the Court and are signed by the Counsel for the parties only for the purpose of identification so as to make the order binding on the parties. An order in terms of minutes is an order of the Court and not a consent order. It is further observed that it would be a different matter if the Court passes its order in terms of 'Consent Terms', that is on a statement above the signatures of the Counsel which expressly stated that it was 'by consent' and the order of the Court in such an event would read 'order in terms of consent terms', In the instant case, the order of the Industrial Court reads thus :
'Read Exh.CU-1. The Complaint is disposed of as settled as per settlement dated 26-9-1994.'
This obviously means that a settlement which was entered into by the parties was the reason for passing the order and the order is a consent order and not an order of the Court. Therefore, the clauses of the settlement of 26-9-1994 would not be binding on the parties in the second complaint. The Apex Court in the case of Shankar Sitaram Sontakke and Anr. v. Balkrishna Sitaram Sontakke and Ors. reported in : [1955]1SCR99 has held that a consent decree binds the parties as much as a decree passed in invitum, and the compromise is not vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon is binding. These observations will have to be considered in the circumstances of the present case where one union has accepted the closure of the establishment by entering into a settlement with the petitioners whereas respondent No. 1 has been disputing the factum of the closure and its legality. Whether the settlement signed with one union could have binding force on another union and its members will have to be considered.
12. The next submission of the learned Counsel is that a body of workmen was being represented by two different agencies, that is two different trade unions, therefore, the order of the Industrial Court disposing of complaint (ULP) No. 774 of 1994 in terms of the settlement signed by the President of respondent No. 2 would bind all the workmen. In the present case, respondent No. 1 has been able to demonstrate that it represented at least 90 workmen and, therefore, settlement would not be binding on these workmen. The evidence on record,however, shows that on 20-7-1994, a letter was written to the petitioners by respondent No. 1 that the workers had resigned their membership from respondent No. 2 and had become members of respondent No. 1. These, letters were admittedly received on 25-7-1994 by the petitioners. The written statement filed by the petitioners resisting the complaint of respondent No. 1 indicates that they had in fact received the letter of 25-7-1994. Respondent No. 1 also filed membership forms before the Industrial Court indicating that the workmen had ceased to be members of respondent No. 2 and had in fact become members of respondent No. 1. The contention of the learned Counsel is that in view of the judgment in the case of Mumbai Kamgar Sabha v. Abdulbhai reported in : (1976)IILLJ186SC , the body of workmen is what is to be considered and not the Union which is merely the face of the workmen.
13. The contention of the learned Counsel for the petitioners is that the onus to prove the membership of the union lies with respondent No. 1 and respondent No. 1 having failed to discharge this burden, the settlement would be binding on all the workmen. He relies on the judgments in the case of Narang Latex & Dispersions Pvt. Ltd. reported in 1994 2 CLR 51 .
14. The learned Counsel also submits that as the settlement had been accepted by a large majority of the workmen, it is binding on all irrespective of whether they are members of the Union. He relies on the cases of Tata Engineering and Locomotive Co. Ltd. v. Workmen reported 7957 2 LLJ 429 K.C.P. Ltd. v. Presiding Officer and Ors. and New Standard Engineering Co. Ltd. v. M. L. Abhyankar and Ors. reported in : (1978)ILLJ487SC .
15. In the case of Tata Electric (supra), the Apex Court, was dealing with a settlement by a large number of workmen. In this case, the settlement was accepted as binding on the members of the union Telco Kamgar Sanghatana, which represented 564 workmen since the union was party to the settlement and had signed the same. In view of this, the Apex Court held that the workmen were bound by the settlement and therefore, could not reagitate the issue. However, in the instant case, Maharashtra General Kamgar Union, that is, respondent No. 1 is not a signatory to the settlement nor did they accept it. Hence, they would not be bound by it.
16. In the case of KCP Ltd. (supra), the Apex Court was dealing with a recognised and representative union. The representative union having entered into a settlement was considered to be binding on all workmen by the Apex Court especially since the majority of the workmen had accepted the same. However, in the instant case, both the Unions are unrecognised unions under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 and under the Code of Discipline and, therefore, the ratio of the judgments in KCP Ltd. (supra) would not apply in the facts and circumstances of this case.
17. In New Standard Engineering (supra.), the Apex Court has observed that the settlement of labour disputes is always to be referred as it is the best way to guarantee industrial peace. This proposition cannot be questioned. But the settlement must be fair and reasonable and in accordance with law. The Tribunal had found that the settlement between one union and the Company was fair and proper and had been signed by many workmen also. It is in these circumstances that the Apex Court held that such a settlement could not be questioned by a rivalunion. In the present case, no Court has decided whether the settlement dated 29-9-1994 between respondent No. 2 and petitioners is in accordance with law, fair and reasonable nor has the settlement been signed by the workmen.
18. This Court in Narang Latex (supra) has stipulated that the party approaching the Court must prove its case and, therefore, in the submission of the learned Counsel for the petitioners, it was for respondent No. 1 to prove that in fact it represented the workmen when the closure came into effect on 14-7-1994. Not having done this, according to the learned Counsel, respondent No. i must fail. As stated earlier, in the present case, there is evidence on record to show that respondent No. 1 submitted membership forms before the Court which demonstrated that the workmen enlisted in the annexure to the complaint were members of respondent No. 1. Affidavits were filed before the Industrial Court of many of the workmen showing that they had resigned from respondent No. 2 and owed allegiance to respondent No. 1. The witnesses of the respondent No. 1 have stood the test of cross-examination and have deposed that all 90 workmen are members of respondent No. 1. Therefore, it must be accepted that respondent No. 1 did in fact represent the workmen enlisted in (he annexure to the complaint. However, admittedly 71 of these 90 workmen accepted the dues under the settlement. But this would not mean that they had acquiesced with the contentions of the petitioners. Therefore, in my view, respondent No. 1 has discharged its burden and has proved that, it represented the 90 workmen.
19. The submission regarding issue estoppel also does not advance the case of the petitioners any further. Whether there is a genuine and legal closure is not an issue which is determined by any Court. Merely stating in the settlement dated 29-9-1994 that the workmen accept the closure of the establishment will not be sufficient in the present case. As stated earlier the settlement cannot be considered to be binding on respondent No- 1 and its members. Therefore, it cannot be said that the issue regarding closure has been decided.
20. This takes care of the preliminary objections raised by the petitioner. On merits, it has been urged on behalf of the petitioners that the factum of closure cannot be disputed and, therefore, the closure of the Park declared w.e.f. 14-7-1994 cannot be questioned. It is also urged that the Park, being a commercial establishment under Section 2(8) of the Bombay Shops and Establishment Act, will not be covered by the definition of Industrial establishment contained in Section 25-L of the Act and hence, the provisions of Chapter V-B of the Act are not applicable to the Park. It is further submitted, therefore, that non-compliance of the same will not render the closure illegal. As against this, it is submitted on behalf of the respondent No. 1, that the closure effected from 14-7-1994 is not a closure in the eyes of law but amounts to a lockout.
21. The complaint of respondent No. 1 proceeds on the basis that initially the petitioners by their notice dated 30-6-1994 had informed the workmen that during the period of monsoon, the establishment would remain, closed for respondent No. 1. This in the submission of the learned Counsel amounts to layoff and not closure. In the alternative, submits the learned Counsel the stoppage of work from 14-7-1994 amounts to a lock-out. In support of this contention, he submits that soon after the alleged closure, the petitioners entered into anagreement 8-9-1994 with the Best Eastern Hotels Limited permitting them to run the Park as licensees. However, this agreement was not placed on record before the Industrial Court. The Park was restarted on 22-10-1995. It is the contention of the learned Counsel that the stoppage of work does not amount to closure as defined under Section 2(cc) of the Act but is a lock-out. He submits that the circumstances of the case indicate that there was no permanent, closure and, therefore, the only conclusion one could draw is that a lock out had been declared from 14-7-1994. He further submits that a maintenance shop is being run in the Park in order to keep the Park and machinery which is necessary for running the Rides and games in good repair. This being a factory as defined under Factories Act, 1948, the Park would be an industrial establishment governed by the provisions of 25-L of the Industrial Disputes Act and hence, Chapter V-B would apply as in fact there were more than 100 workmen employed by the petitioners on the date of the alleged closure i.e., on 14-7-1994 and the provisions of Section 25-O are attracted. Moreover, he contends, restaurants are being run on the premises of the Park, with their own kitchens and that they were, therefore, covered by the definition of factory as contained in the Factories Act. In support of this contention, he relies, on the judgments in the cases of G. L. Hotels Ltd. and Ors. v. T. C. Sarin reported in : (1994)IILLJ883SC , and Cricket Club of India and Ors. v. Employees' State Insurance Corporation and Ors. reported in : (1998)IIILLJ270Bom .
22. The learned Counsel for the petitioners submits that the predominant nature of the business conducted must be taken into consideration for deciding as to whether the Park is an industrial establishment. He submits that merely because the petitioners run a maintenance shop or serve food or allow restaurants to be run on the premises, it would not lead to the conclusion that the Park is in fact an industrial establishment.
23. In the case of G. L. Hotels Limited and Ors. v. T. C. Sarin reported in : (1994)IILLJ883SC has been held that a hotel is a factory as a manufacturing process is being carried out in a part of its premises, that is, in the kitchen and, therefore, the hotel is a factory. The Apex Court in fact has taken the view that a broad connection is required between the predominant activity and the manufacturing process. If the manufacturing activity has no connection whatsoever with the activity that is carried out on the rest of the premises, it would not be sufficient to attract the provisions of the definition of factory.
24. A similar view has been taken by this Court in the case of Cricket Club of India (supra). Placing reliance on the judgment of the G. L. Hotels (supra), the Division Bench has observed that although the club provides facilities for sports a large number of members visit club not necessarily to participate in the sporting activities but to entertain themselves and their guests by partaking beverages and food served by the club and hence, the activity in the kitchen has a direct connection with the activities carried on in the rest of the premises. The Division Bench was of the view that the Club premises were covered by the definition of 'factory'.
25. To determine whether an establishment is a factory, one will have to advert to the provisions of the Factories Act, 1948. Under Section 2(12) of the Factories Act, a 'factory' means any premises including the precincts thereof -
'(a) Whereon ten or more persons are employed or were employed for wages on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, or
(b) whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on'.
Section 2(k) of the Factories Act, 1948 defines 'manufacturing process' as follows:
'(k) 'manufacturing process' means any process for -
(i) making, altering, repairing, ornamenting, finishing, packing,oiling, washing, cleaning, breaking up, demolishing, or otherwisetreating or adapting any article or substance with a view to its use,sale, transport, delivery or disposal, or -
(ii) pumping oil, water sewage or any other substance; or
(iii) generating, transforming or transmitting power; or
(iv) composing types for printing, printing by letter press, lithography,photogravure or other similar process or book binding; or
(v) constructing, reconstructing, repairing, refitting, finishing orbraking up ships or vessels; or
(vi) preserving or storing any article in cold storage'.
Under Section 2(1), 'Worker' in a factory has been defined as follows :
''worker' means a person employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing, process, but does not include any member of the armed forces of the Union'.
Therefore, a factory would mean any place or precincts thereof on which a manufacturing process is carried out and the workers employed in any part of such an establishment are workers of the factory.
26. It cannot be denied that the maintenance shop is an integral part of running of the Park. The maintenance of the rest of the Park and the overhauling of the machines for the rides require constant monitoring which is done by the persons employed in the maintenance shop. Therefore, it cannot be said that the maintenance shop had nothing to do with the Park. The work in Maintenance shop is restricted to keeping machines, rides, games and other gadgets used exclusively in the Park in good repair.
27. Moreover, the contention of the petitioners that they could have given the maintenance to some other agents also need not be considered. In present case, the maintenance was carried out by the petitioners themselves and therefore, the very fact that such shop was required to be run in the premises of the Park shows that there is a need for the same. Moreover, there is no gainsaying that if there is an emergency, the persons from the maintenance shop would be required to attend to iton an immediate and urgent basis instead of waiting for the persons who install the rides to tend to the problem especially when children are the main users of the Park. Therefore, there is a definite connection between the Park and the maintenance shop, which is a place where a manufacturing process as defined under Section 2(m) of the Act is being carried out. The maintenance shop, if not an integral part of the Park certainly has a broad connection with the rest of the Park. Therefore, the establishment of the petitioners must be considered to be a factory. This being so, it is an industrial establishment under the provisions of the 25-L of the Act.
28. 'Admittedly, there are more than 100 workmen employed with the petitioners. No permission has been sought for by the petitioners from the State Government as required under Section 25-0 of the Industrial Disputes Act prior to the closure. Therefore, the provisions of Item 9 Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 would be attracted. Non-compliance of the provisions of this Section would mean that the workmen are entitled to wages under 25-0(6) and the workmen would be entitled to benefits under the law as if the undertaking has not been closed down.
29. In view of this, the findings of the Industrial Court regarding the illegality of the closure cannot be faulted. However, in my view, the closure of the Park on 14-7-1994 would not amount to a lock-out or a lay-off but an illegal closure. Hence, the petitioners have indulged in unfair labour practices under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
30. Rule, accordingly, stands discharged. However, there shall be no order as to costs.