H. V. G. RAMESH, J. ( 1 ) IN this petition, petitioner has prayed for issuing a writ of certiorari to quash annexures C and G dated 3. 7. 2004 and 19. 8. 2004 passed by the 1st respondent and to direct the 1st respondent to refer the issue of permission of closure with effect from 10. 8. 2004 to the industrial Tribunal, Bangalore as per S. 25-O (5) of the Industrial disputes Act. ( 2 ) IT is the case of the petitioners that the respondent management has filed an application on 30. 4. 2004 as per S. 25-O (1) of the Act before the 1st respondent seeking permission to close their unit with effect from 10. 8. 2004 a per annexure A in respect of which the petitioner Union filed statement of objections along with several documents. In the course of enquiry, some more materials were also produced. After hearing, while granting permission to the Management to close the unit manufacturing refrigerators, an order was passed on 3. 7. 2004 by the 1st respondent as at annexure C against which the petitioner filed a review petition as per S. 25-O (5) of the Industrial disputes Act on 5. 7. 2004 before the 1st respondent against which objection was filed by the management and the same was rejected. As such, petitioner has approached this Court seeking for the above relief. ( 3 ) HEARD the counsel representing the respective parties. It is the argument of the petitioner's counsel that there are 352 workers working in the respondent company but the management has wrongly mentioned as 267 workers only. Further, according to him, the management has mentioned their product as only refrigerators even though other products like plastic injection moulds and plastic components were produced in the Unit run by the management. According to the learned counsel, there are no such different units but rather, the management has taken a contention that there are two units one for manufacturing refrigerators which they have sought for closure and another unit, stating that it is an independent Unit producing plastic injection moulds and plastic components, although both these units are one and the same and the management has divided 352 workers of these units mentioning as 267 and 85 respectively. The petitioner is also disputing the contention of the management that in respect of refrigerators unit they have approached the BIFR on the ground that it is running under loss which is not correct. Rather, according to the appointment orders issued to all the 352 workers, there is no difference and no different Unit names are mentioned and the workers are involved in common manufacturing process. It is also his contention that despite several documents produced in this regard, the 1st respondent without examining all these points, has granted permission to the management to close its establishment wherein 267 workers are working. In support of his case, learned counsel has relied upon various decisions of the Supreme Court and contended that when there is a controversy as to the Unit manufacturing refrigerators and also plastic injection moulds and plastic components as one and the same, contrary to the stand of the management, the same should have been decided by the 1st respondent and it ought to have referred the matter to the Tribunal for adjudication as per S. 25-O (5) of the Act, in stead, permission has been granted by the 1st respondent for the closure of the Unit without verifying the submissions made by the petitioner and accordingly contended that the rejection of the review application is bad. ( 4 ) PER contra, counsel for the management has vehemently contended that the Unit of manufacturing refrigerators is running in an independent premises whereas the unit manufacturing plastic components was established much earlier and running in a different premises and the two Units are established at two different point of time and apart from that, as per the audit report, there is heavy loss incurred by the Unit manufacturing refrigerators and it is not viable and submitted that when one of the Unit is running under loss and it was difficult to maintain workers through independent contractors, the management has taken a decision to close the unit and with the supporting evidence, moved the respondent authority which in turn, after consideration of the same, exercising discretion, has rightly taken a decision according permission. ( 5 ) IT is further submitted that while ordering for closure, an order is also passed for payment of compensation and now the matter is pending before the BIFR regarding viability of the company. ( 5 ) IT is further submitted that while ordering for closure, an order is also passed for payment of compensation and now the matter is pending before the BIFR regarding viability of the company. If the permission is given by the BIFR immediately closure compensation would be settled in respect of employees and it is also submitted that there is also scope for the 1st respondent to examine the documents and take a decision in the matter and not necessarily he has to mechanically refer the matter to the Tribunal for adjudication. Accordingly, it is submitted that after examining the documents which were clear on record such a decision at annexure C was taken which cannot be found fault with. In support of his argument, learned counsel has also relied upon the decision of the Supreme court which I shall refer to later in the course of the order. ( 6 ) IN the light of the arguments advanced, let me consider whether the impugned order at annexures C and G requires interference and whether there is a dispute to be referred to the Industrial Tribunal/ labour Court for adjudication of the matter. ( 7 ) IT may be relevant to quote S. 25-F of the Industrial Disputes act which reads as under: s. 25 F Conditions precedent to retrenchment of workmen: no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until a. the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; b. the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and c. notice in the prescribed manner is served on the appropriate government for such authority as may be specified by the appropriate government by notification in the official gazette. ( 8 ) IN the case of Inland Stead Navigation Workers Union and Anr Vs Union of India and Ors - referring to S. 25 (FFF) and s. 33 (C) (2) of the Industrial Disputes Act, the Supreme Court has observed that when an Undertaking is closed down by reason of financial difficulties, it could not have been deemed to have been closed down on account of unavoidable circumstances as such, if an application is made by the workmen through the Union under S. 33 (C) (2), it would be proper for the Labour Court to examine the claim of these workmen and award compensation accordingly. ( 9 ) IN the case of Orissa State Commercial Transport corporation Employees' Union Vs Orissa State Transport corporation Ltd and Ors referring to S. 25 (O) (5), the Orissa High court has held that the ground for closure has to be reasonable and state Government can refer the question of closure to Industrial tribunal. ( 10 ) IN the case of Hindalco Industries Ltd and Union of India and Ors referring to S. 25 (O) of the Industrial Disputes Act, the Apex court has held that the condition imposed in the order of the government granting permission for the closure were valid and binding on the appellant. The Apex Court had also observed that the appellant's contention that S. 25 (O) would apply only to a voluntary and intended closure of an undertaking was without force. The supreme Court referring to S. 25 (K) of the Act and pointed out that the appellant had retrenched about 211. Employees and S. 25 (O) was the relevant provision. ( 11 ) IN the case of Vazir Glass Works Ltd Vs Maharashtra general Kamagar Union and Anr in para 29, it is held that the principle of retaining jurisdiction of disposing review application validly made or the principle that an authority if clothed with the power of review will not become functus officio after expiry of the time frame of one year but it will retain its authority to dispose of the pending review application will arise in the context of the scheme of S. 25 (O ). ( 12 ) IN the case of Gwalior Rayons Workers Organization Vs state of Kerala - the learned Single Judge of the Kerala High Court has noted that the application filed by one of the parties before the appropriate government under S. 25-O was rejected. Subsequently, another application was filed seeking for review of the order and in the alternative, there was also a prayer for referring the matter to the industrial Tribunal for adjudication. However, the Government although rejected the prayer for review, granted the prayer for referring the matter to the Tribunal. In this context, the party approached the high Court. However, the Single Judge upheld the order of the appropriate Government. Being aggrieved by the same, the management went in appeal before the Division Bench. The Division bench referring to S. 25 - O (5) of the Act, has concurred with the view taken by the Single Judge and has noted that as per Sub-sec. (5), the Government may either review the order or refer the matter to the tribunal for adjudication and it would not disable the government from passing an order referring the matter to the Tribunal for adjudication when it takes a view that there is no reason to review its earlier order refusing permission for closure wherein the first application filed seeking for closure of the Unit was rejected. ( 13 ) IN the decision in the case of Orissa Textile and Steel Ltd Vs state of Orissa and Ors, the Apex Court has held that the interest of general public or other factors might still justify refusal of permission when a closure permission is sought for and that the business be continued for some time. Further, referring to S. 25 - O, it has held that there is nothing vague or ambiguous in the provision and it is S. 25-O which comes to play to grant or refuse permission. It would be impossible to enumerate all different contingencies or situations which may arise in actual practice. Each case would have to be decided on its own facts and on the basis of circumstances prevailing at the relevant time. It would be impossible to enumerate all different contingencies or situations which may arise in actual practice. Each case would have to be decided on its own facts and on the basis of circumstances prevailing at the relevant time. ( 14 ) IN the case of Orient Paper Mills and Anr Vs State of Orissa and three others - the Orissa High Court has held that once the management sought reference under S. 25-O (5), the Government had no option but to make a reference to the Tribunal. In the said case, the management had been knocking the doors of the government for permission to close its industrial unit as per S. 25-O and such earlier several attempts being made by the management was not considered. Subsequently, on such reference sought by the management, the government converted the said application as one for review and denied permission. In such a situation, the Division Bench of the said High court has held that the appropriate government has to refer the matter to the Tribunal. ( 15 ) IN the case of Bomin Pvt Ltd Vs Gujarat Mazdoor panchayat - the Gujarat High Court has held that as per S. 25 - O, on such closure application being filed by an industry, it is competent to the Government to impose condition while granting permission. ( 16 ) IN the case of Voltas Employees Union, Mumbai Vs Voltas ltd, Bomay and Anr - the Management had sought to close down two of the Units of the company. The Tribunal having examined the matter, had come to the conclusion that reason for closure was genuine. However, the High Court having noted the circumstances, was of the view that the relevant factors requiring consideration were not properly weighed, as such, it formed an opinion that permission for closure could not have been granted. ( 17 ) COUNSEL representing the management has relied upon the decision in the case of M/s Hathising Manufacturing Co Ltd, ahmedabad and Anr Vs Union of India and Anr - wherein the apex Court has observed that 'if it was found that the closure was bonafide and was in part due to irresponsible conduct of the workmen concerned. . . . . . where the business is continuing its capacity to meet the obligation to pay dearness allowance, gratuity and provident fund etc. . . . . . where the business is continuing its capacity to meet the obligation to pay dearness allowance, gratuity and provident fund etc. , have to be taken into account; the reason being that if the capacity to pay is not taken into account, the business itself may come to an end and the very purpose of industrial adjudication in the matter of fixation of wages, payment of deamess allowance and the schemes of gratuity and provident fund are intended for the amelioration of the conditions of labour may be frustrated. But, where a business is closed, the capacity to pay is not a relevant consideration. Normally if the business is capable of meeting the obligation to pay the wages of the workmen and to meet the other expenses necessary for its continuance, it would not be closed down. Capacity to pay has therefore to be taken into account in the case of a running business in assessing liability to fix wages or gratuity or dearness allowance. Once the undertaking is closed and liability to pay compensation under the impugned section is not made a condition precedent, the amount which the workmen may be able to recover must depend upon the assets of the employer which may be available to meet the obligation. The workmen would be entitled to recover compensation only if the employer is able to meet the obligation otherwise they would have to rank pro rata with the other ordinary creditors of the employer. ' ( 18 ) IN the case on hand, on such application being filed by the management, the government while exercising power under S. 25-O (5)has accorded permission. However, it has ordered for payment of closure compensation. At this juncture, the Union has sought for review of the decision of the Government and to refer the matter to the Tribunal for adjudication on the ground that the management has practised discrimination to the effect that one of the Unit with small number of employees is being retained whereas on the ground that it is incurring loss the other Unit is sought to be closed where more than 265 employees are working. The decision of the Government according permission to close though there is an order for payment of compensation, will not meet the ends of justice and rather, financial hardship is not the ground on which the closure could be permitted. The decision of the Government according permission to close though there is an order for payment of compensation, will not meet the ends of justice and rather, financial hardship is not the ground on which the closure could be permitted. ( 19 ) IT is also canvassed on behalf of the Union that the management wants to shirk off from the liability, when the two Units are integrated, the management could have very well taken a decision to continue the unit and incurring loss at some point of time would not be a factor to accord permission to close down the Unit. Accordingly, it is the submission of the petitioner that the closure permission accorded was without justification and without assigning any reasons. Further, it is his submission that when the Union has sought for review of the order and to refer the matter to the Tribunal for adjudication as to whether the Unit is viable or not, whether there is any justification in granting permission for closure or not has not been considered by the government. ( 20 ) IN this context, counsel representing the management having shown the data of the amount of loss incurred and the notification made, tried to justify the action of the Government in granting permission for closure. At this juncture, it is to be noted that on the ground that the Unit is sick, the matter is pending before the BIFR. Even it is seen the so called order of the Government to pay the closure compensation on such closure could also not be realized for the fact that the matter is pending before the BIFR. If there is further development of winding up of the company and in this regard an official liquidator is appointed, then also the payment of compensation to the workmen may be a hard reality as it involves a lengthy process. In this regard, whether the assets available would meet out the requirement of payment of compensation or not has to be examined and whether the government was justified in taking a decision for according permission to close the unit by paying compensation also requires examination as it may amount to lifting the corporate veil to see that all is well with the management. ( 21 ) IN the circumstances, the appropriate Government could have taken into consideration the grievance of the petitioner as to whether both the Units are integrated or whether there is any justification in permitting closure of one Unit. Might be there is an earlier order of closure on the basis of the permission granted but the fact to be examined is whether such a closure is bad or not and also even if such a decision is taken, whether the workmen could be accommodated in the viable unit or to revive the very unit for which permission to closure was accorded and this exercise can be done by the Tribunal as a matter of fact finding as it involves huge stakes and the life of more than 250 workmen and what is sought for by the workmen is only review of the decision of the Government and in turn to seek for referring the matter to the Tribunal. ( 22 ) OF course S. 25-O (5) provides discretion to the Government to take a decision in the matter as ultimately the workmen are espousing their cause pointing out that the two Units are integrated part of one unit and closing one unit and retaining the another would jeopardize the interest of the workmen. This has to be examined by the Tribunal on such reference to it for adjudication of the cause espoused by the workmen as it is a fact finding body. ( 23 ) ACCORDINGLY, petition is allowed. The application filed by the petitioner for review before the Appropriate Government which came to be rejected by the Government is quashed. The Government to refer the matter to the Tribunal for adjudication.