A. M. AHMADI, J. ( 1 ) THE Kalol Nagarpalika was running a single bus transport service Since it was running in loss as evidenced by the statement filed as Annexure to the affidavit-in-reply it was decided on 1/09/1986 to close it down. At the relevant point of time when this decision was taken the staff strength so far as the transport undertaking was concerned was of 15 employees. The Nagarpalika therefore served these employees with notice dated 14/10/1986 whereunder their services would stand terminated With effect from 17/11/1986 To put it differently the Nagarpalika gave one months notice to the employees of the transport undertaking proposed to be closed and terminated their employment. The Municipal Panchayat Employees Union reacted by serving the Nagarpalika with a notice dated 21/10/1986 under sec. 22 of the Industrial Disputes Act 1947 (herein after called the Act) to proceed on strike. Along with the notice a statement of reasons for the decision to proceed on strike and a list of employees affected by the termination order and required to be restored to their original post or accommodated elsewhere in the same time-scale were appended as Annexures A and B respectively to the notice. Soon after the service of this notice and before the termination order took effect the Union filed the present petition under Art. 226 of the Constitution of India and obtained an ex parte order for the maintenance of status quo. On notice being issued the respondent Nagarpalika filed an affidavit-in-reply stating that the transport undertaking being a distinct undertaking of the Nagarpalika had to be closed because it was running in losses and the bus was out of order. Notices had there fore to be issued to the employees for terminating their services. It is therefore contended on behalf of the Nagarpalika that its action to close down the transport undertaking was bona fide as it could not bear further financial losses. The Nagarpalika therefore contends that the petition is clearly misconceived and deserves to be dismissed in limine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 2 ) THE learned counsel for the petitioner next invited our attention to sec. 22 of the Act which inter alia posits that no person employed in a public utility service shall go on strike in breach of contract without giving to the employer notice of strike within six weeks before striking. On such a notice being given he contended that conciliation proceedings must be deemed to have commenced from the date of notice of strike as envisaged by sec. 20 of the Act. In the present case since the Union had given a strike notice of 21/10/1986 as required by sec. 22 of the Act the conciliation proceedings must be deemed to have commenced from the date of receipt of the said notice by the employer by virtue of sec. 20 of the Act. He next invited our attention to sec. 33 (1) (a) which lays down that during the pendency of any conciliation proceeding before a conciliation officer in respect of an industrial dispute no employer shall in regard to any matter connected with the dispute alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceeding. Counsel submitted that since conciliation proceedings had commenced on receipt of the notice of strike dated 21/10/1986 sec. 33 (1) (a) came into play and the termination of service of the workmen belonging to the transport undertaking with effect from 17/11/1936 was clearly in violation thereof. Counsel submitted that since conciliation proceedings had commenced on receipt of the notice of strike dated 21/10/1986 sec. 33 (1) (a) came into play and the termination of service of the workmen belonging to the transport undertaking with effect from 17/11/1936 was clearly in violation thereof. ( 3 ) ON the other hand counsel for the respondents submitted that the decision to close down the undertaking was taken by the General Board of the Nagarpalika on 18/08/1986 and accordingly the undertaking was closed down with effect from 1/09/1986 and the employees were served with one months notices terminating their services. Thus on the date of the receipt of the strike notice under sec. 22 of the Act the undertaking was no more in existence and hence sec. 33 (1) (a) did not apply. Besides as the termination notices also preceded the strike notice the management could not be said to have altered to the service conditions during the pendency of conciliation proceedings so as to attract sec. 33 (1) (a) of the Act. Lastly it was said that the undertaking was not a public utility service and hence the case did not attract sec. 22 and the fiction of sec. 20 to invite the application of sec. 33 (1) (a) of the Act. ( 4 ) SEC. 22 casts an obligation on persons employed in public utility service not to proceed on strike without giving prior notice to the employer. If such a notice is served on the employer a conciliation proceeding commences from the date of receipt of that notice by virtue of sec. 20 of the Act. The expression public utility service is defined in sec. 2 (n) of the Act Reliance was placed on clause (vi) of that provision which refers to any industry. specified in the First Schedule which the appropriate Government may (if satisfied that public emergency or public interest so requires) by notification in the Official Gazette declare to be a public utility service for the purposes of the Act for such-period as may be specified in the notification. When we turn to the First Schedule we find Entry 1 to the effect Transport (other than railways) for the carriage of passengers or goods by land or water. Counsel therefore submitted relying on clause (vi) of sec. When we turn to the First Schedule we find Entry 1 to the effect Transport (other than railways) for the carriage of passengers or goods by land or water. Counsel therefore submitted relying on clause (vi) of sec. 2 read with Entry 1 in the First Schedule that the transport undertaking of the Nagarpalika was a public utility service and therefore the provision of sec. 33 (1) (a) read with secs. 22 and 20 came into play on the Nagarpalika being served with a strike notice dated 21/10/1986 The learned counsel for the petitioners was however asked to produce the relevant notification issued by the appropriate Government declaring the undertaking to be a public utility service under sec. 2 (n) (vi) of the Act. He was not in a position to produce any such notification issued by the appropriate Government. He frankly conceded that there was no such notification. In the absence of a notification the transport undertaking could not be said to be a public utility service as defined by sec. 2 (n) (vi) so as to invoke the application of sec. 33 (1) (a) on the premise that on the service of notice under sec. 22 conciliation proceedings must be deemed to have arisen. ( 5 ) REALISING this difficulty learned counsel for the petitioners submitted that while the transport undertaking run by the Nagarpalika may not be public utility service within the meaning of clause (vi) of sec. 2 (n) of the Act since a general strike notice was served by all the employees serving in different departments of the Nagarpalika including those serving in public utility services such as water sanitation etc. referred to in clauses (iv) and (v) of sec. 2 (n) the provisions of secs. 20 and 33 (1) (a) would still be attracted and the termination of employ. ment of workers serving in the transport undertaking would be contrary to law. In this connection it is important to realise that the strike notice was occasioned on the Nagarpalika having decided to terminate the employment of those working in the transport undertaking which had to be closed down with effect from 1/09/1986. A mere perusal of the notice Annexure B dated 21/10/1986 clearly shows that the strike notice was given in response to the Nagarpalikas decision to close down the transport undertaking and terminate the services of 15 employees belonging thereto. A mere perusal of the notice Annexure B dated 21/10/1986 clearly shows that the strike notice was given in response to the Nagarpalikas decision to close down the transport undertaking and terminate the services of 15 employees belonging thereto. If we turn to Annexure A to the notice we find a direct reference to the decision of the Nagarpalika to close down the undertaking and terminate the services of workers belonging thereto. If we read Annexures A and B to the strike notice together a clear picture emerges. Therefore the immediate and only cause for the strike notice was the decision of the Nagarpalika to close down the transport undertaking and in consequence terminate the services of the employees belonging to that undertaking. In Annexure B to that notice even the names of the employees whose services were sought to be dispensed with by the notice dated 14/10/1986 have been set out. There is no mention about the services of employees belonging to the water supply public conservancy or sanitation departments in the said notice so as to attract the provisions of clauses (iv) and (v) of sec. 2 (n) of the Act. It is therefore clear on a perusal of the notice dated 21/10/1986 that the employees had threatened to proceed on strike as the Nagarpalika had decided to close down the transport undertaking and terminate the services of the employees belonging to that undertaking. The submission based on clauses (iv) and (v) of sec. 2 (n) of the Act is therefore clearly far fetched. ( 6 ) IN view of the above discussion it is clear that the transport undertaking run by the Nagarpalika was not a public utility service on the date is decided to effect closure that is 1/09/1986. Sec. 22 of the Act was therefore not attracted. Consequently conciliation proceedings cannot be deemed to have commenced on the service of notice dated 21/10/1986 by virtue of sec. 20 and therefore sec. 33 was not attracted. ( 7 ) NOW assuming for the sake of argument that conciliation proceedings were pending on the date the termination was actually to take effect the question is whether sec. 33 (1) (a) of the Act is attracted. We may state that counsel for the petitioner fairly conceded that sec. 20 and therefore sec. 33 was not attracted. ( 7 ) NOW assuming for the sake of argument that conciliation proceedings were pending on the date the termination was actually to take effect the question is whether sec. 33 (1) (a) of the Act is attracted. We may state that counsel for the petitioner fairly conceded that sec. 33 (1) (b) had no application but according to him since the termination was to become effective from 17/11/1986 the permission of the conciliation officer was necessary. However we think that sec. 33 of the Act would not be attracted in the fact-situation of the present case. The facts clearly reveal that pursuant to the General Boards resolution the Nagarpalika closed down the transport undertaking with effect from 1/09/1986. On its closure the services of the employees of the undertaking had to be determined by one months notice. Once the undertaking was dead and gone there could be no question of continuing the services of the employees of the said undertaking Unless it is shown that the closure is mala fide and effected with a view to victimising the employees no question of obtaining prior permission under sec. 33 can arise as the termination cannot in such circumstances amount to altering the service conditions of the concerned employees. In Banaras Ice Factory Ltd. v. Its Workmen AIR 1957 SC 168 two questions arose for consideration viz. (i) whether the termination of services on closure pending an industrial dispute attracted sec. 33 a) and (ii) if not whether such termination was discharge within the meaning of sec. 33 (1) (b) of the Act. We are concerned with the first contention and not the second one. In that case closure was effected on account of-financial constraints pending an industrial dispute. The Supreme Court was called upon to decide if termination of employment in such circumstances attracted either clause (a) or clause (b) of sec. 22 of the Industrial Disputes (Appellate Tribunal) Act 1950 which is in pari materia with clauses (a) and (b) of sec. 33 (1) of the Act. The Supreme Court after referring to its earlier decisions came to the conclusion that clause (a) can apply to a running or existing industry and not to an industry which has ceased to exist. 22 of the Industrial Disputes (Appellate Tribunal) Act 1950 which is in pari materia with clauses (a) and (b) of sec. 33 (1) of the Act. The Supreme Court after referring to its earlier decisions came to the conclusion that clause (a) can apply to a running or existing industry and not to an industry which has ceased to exist. The alteration in service conditions referred to in clause (a) has reference to an existing industry and not a dead one. In the present case also the industry had ceased to exist with effect from 1/09/1986 and therefore sec 33 was not attracted. ( 8 ) AGAIN in the case of Bhavnagar Municipality v. A. Karimbhai AIR 1977 SC 1229 the Supreme Court observed in paragraph 13 of its judgment as under:retrenchment may not ordinarily under all circumstance amount to alteration of the conditions of service. For instance when a wage dispute is pending before a Tribunal and on account of the abolition of a particular department the workers therein have to be retrenched by the employer such a retrenchment cannot 8 amount to alteration of the conditions of service. In this particular case also we find that the closure was bona fide as the Nagarpalika was incurring heavy losses and could not run the undertaking. It therefore took a decision to close down the undertaking: and discharge the workmen belonging thereto. Notice of termination was therefore issued on 14/10/1986 giving one months time as required by the relevant rules. The decision therefore to terminate the services of employees belonging to the transport undertaking was taken immediately after closure and in consequence thereof notices of termination were issued on 14/10/1986. Indisputably on that day no industrial dispute was pending before any authority) whatsoever and hence sec. 33 (1) (a) was not attracted. It was said that in similar circumstances the Supreme Court in the case of Bhavnagar Municipality (supra) held that the case fell within the purview of sec. 33 (1) (a) of the Act. In that case an industrial dispute for permanent status of daily rated workers of the Water Works Section was pending when the Municipality decided to entrust the work to a contractor. IQ pursuance of that decision certain temporary workers who were claiming permanent status were retrenched. 33 (1) (a) of the Act. In that case an industrial dispute for permanent status of daily rated workers of the Water Works Section was pending when the Municipality decided to entrust the work to a contractor. IQ pursuance of that decision certain temporary workers who were claiming permanent status were retrenched. It was not a case of closure but a case of transfer of work to an independent contractor which had a direct impact on the pending demand. That is why the Supreme Court held that the action on the part of the Municipality amounted to alteration in service condition. Such are not the facts of the present case and therefore the general observations quoted earlier apply in this case. We are therefore of the opinion that in the particular fact-situation of the present case sec. 33 (1) (a) is not attracted. ( 9 ) NO other submission was made. For the above reasons we do not see any merit in this petition and summarily reject the same Notice discharged. Interim relief vacated. ( 10 ) BEFORE we part we must state that our endeavour to persuade the Nagarpalika to absorb a few of the workmen whose services came to be terminated by the notice of 14/10/1986 failed because of the petitioner Unions all-or-none attitude. Petition dismissed. .