JUDGMENT : R.N. Misra, J. - This is an application for a writ of certiorari to quash an order of reference made by the State Government in exercise of their powers under section 12(5) read with section 10(1)(d) of the Industrial Disputes Act, 14 of 1947 (Here in after referred to as the Act). 2. The question referred is- "Whether the pick and choose method adopted by management of Kalinga Tubes Limited, Choudwar, Cuttack in re-employing their old workmen after reopening of the factory on lifting of closure from 17-6-1968, is legal and/or justified ? If not, to what relief the workmen are entitled ?" The petitioner contends that there was a closure of the business of the Kaling Tubes Limited with effect from 3-10-1967. On 17-6-1968, there was a partial resumption of production, "pick and choose method" mentioned in the preference is "re-employment of retrenched workmen" as provided for in section 25-H of the Act which is a statutory provision in relation to retrenched workmen. As the petitioner's business was closed down and upon such closure employment of workmen had come to cease, section 25-H of the Act has no application. The dispute is misconceived and overlooks the decision of the Supreme Court holding that the company had closed down its business with effect from 3-10-1967 and cessation of production was not the outcome of a look-out. Relief is claimed on the footing that the reference is without any basis and the State Government have no jurisdiction to make the reference. 3. In the counter-affidavit of the State Government, it is conceded that the real dispute is over re-employment of retrenched workmen and "pick and choose method" as indicated in the reference was really with reference to the provisions of section 25-H of the Act. 4. 3. In the counter-affidavit of the State Government, it is conceded that the real dispute is over re-employment of retrenched workmen and "pick and choose method" as indicated in the reference was really with reference to the provisions of section 25-H of the Act. 4. In Kalinga Tubes Limited v. Their Workmen 1969 S.C.D. 172 : 1969 C.L.T. 223 (S.C.) their Lordships came to the conclusion- "The entire facts and circumstances established in this case impel us to hold that the management of the appellant closed down its principal undertaking of manufacturing and selling iron pipes and poles on October 3, 1967............" Section 25-H of the Act provides- "Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who ore citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons." "Retrenchment" has been defined in section 2(00) of the Act to mean "the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include (a) voluntary retirement of the workman ; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (c) termination of the service of a workmen on the ground of continued ill-health. "Section 25-H is necessarily attracted only when there is a retrenchment within the meaning of section 2(00) of the Act. "Section 25-H is necessarily attracted only when there is a retrenchment within the meaning of section 2(00) of the Act. In the case of Hariprasad v. A.D. Divelkar AIR 1957 S.C. 121 their Lordships laid down;- "We hold, contrary to the view expressed by the Bombay High Court, that retrenchment as defined in section 2(00) and as used in section 25-F has no wider meaning than the ordinary, accepted connotation of the word : it means the discharge of surplus labour or staff by the employer for any reasons whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and it has no application where the services of all workmen have been terminated by the employer on a real and bona fide closure of business as in the case of Shri Dinesh Mills Ltd. or where the services of all workmen have been employer on the business or undertaking being taken over by another employer in circumstances like those of the Railway company......There is in fact a distinction between transfer of business and closure of business ; but so far as the definition clause is concerned both stand on tho same footing if they involve termination of service of the workmen by the employer for any reason whatsoever, otherwise than as a punishment by way of disciplinary action. On our interpretation, in no case is there any retrenchment, unless there is discharge of surplus labour or staff in a continuing or running industry." This view was quoted with approval in the case of Anakapalle Co-Operative Agricultural and Industrial Society Ltd. v. Workmen and others AIR 1963 S.C. 1489 . In the latter case their Lordships further said:- "Once we reach the conclusion that in the case of a transfer of any undertaking the legislature has by section 25-FF provided for payment of compensation to the employees on the clear and distinct basis that their services have been terminated by such transfer, it is difficult to see how any questions of fair play or social justice would justify the claim by the respond dents that they ought to be re-employed by the appellant. It is that in cases falling under section 25-F, workman may get retrenchment compensation and they may yet be able to claim re-employment under section 25-H and in that sense, some workmen may get both retrenchment compensation and re-employment. It is that in cases falling under section 25-F, workman may get retrenchment compensation and they may yet be able to claim re-employment under section 25-H and in that sense, some workmen may get both retrenchment compensation and re-employment. That is no doubt the effect of reading section 25-F and section 25-H together. But it must be borne in mind that in the case of retrenchment, the undertaking continues and only some workmen are discharged as surplus and it is the problem of re-employment of this small number of discharged workmen that is tackled by section 25-F. Besides, under section 25-H, a discharged workman may not be entitled to claim re-employment immediately after retrenchment or even soon thereafter. It is only if the employer who discharged him as surplus requires additional workman that his opportunity may occur.........." The legal position seems to be beyond the realm of controversy that as a consequence of a closure employment comes to an end. The undertaking ceases to be a growing concern and necessarily it is not a case of discharge of surplus labour, but termination of employment of all. Section 25-H of the Act does not at all apply to such a contingency. 5. Learned Additional Government Advocate appearing for the State Government which made the reference fairly conceded that the reference is not at all supported. 6. Mr. S. Misra appearing for the opposite party no. 3 at whose instance the reference had indeed been made contends that the reference is tenable and at any rate we should not quash the reference, the matter must go before the Tribunal where it would be open to the petitioner to contend that the reference does not lie. There is considerable doubt about the jurisdiction of the Tribunal to question the tenability of the reference. The decisions indicated by Mr. Misra do not take notice of the principle indicated by their Lordships of the Supreme Court nor is any one of them dealing with the consequences of closure. As such we are satisfied that reliance for the stand of the opposite party No. 3 cannot be derived from any of them. 7. The decisions indicated by Mr. Misra do not take notice of the principle indicated by their Lordships of the Supreme Court nor is any one of them dealing with the consequences of closure. As such we are satisfied that reliance for the stand of the opposite party No. 3 cannot be derived from any of them. 7. We are satisfied that the State Government acted without jurisdiction in directing a reference to be made by order dated 2-7-1969 in exercise of their powers under section 12(5) read with clause (d) of sub-section (1) of section 10 of the Industrial Disputes Act. A writ of certiorari shall, therefore, issue to quash that order. We do not propose to saddle the opposite party - State with costs in view of the fair concession made during hearing by its counsel. K.B. Panda, J. - I, agree. Final Result : Allowed