Judgment 1. Heard Mr. V.P. Marpakwar, learned Counsel for the petitioner. None appears on behalf of the respondents. 2. The petitioner has challenged the Order, dt.7.8.2007 passed by the Industrial Court, Nagpur in Complaint (ULP) No.412 of 2004 whereby the complaint filed by the respondents was partly allowed and layoff declared by the petitioner was held illegal and full back wages were granted for the period of lay off. The Court held that the petitioner herein committed the unfair labour practice while resorting to layoff and not paying Wages (vide item 9 Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The payment of workers was held as wrongfully withheld by the employer. 3. It is argued that the petitioner is an ‘industry’ engaged in manufacturing of Gas Cylinders at Kalmeshwar, District Nagpur and the provisions of the Bombay Industrial Relations Act, 1946 are applicable and not Chapter VB of the Industrial Disputes Act, 1947. 4. Mr. V.P. Marpakwar, learned Counsel for the petitioner relied upon the ruling in the case of Tatanagar Foundry Co. Ltd. vs. Their Workmen reported in AIR 1962 SC 1533 to argue that it is not open for the Industrial Court to find out whether the management could have avoided the layoff. Of course, the employer is expected to manage his affairs prudently in anticipating and avoiding the difficulties before he may layoff his workmen. Where layoff satisfies the tests laid down under Section 2 (kkk) of the Industrial Disputes Act, it is not open for the Tribunal to inquire whether the employer could have avoided layoff if he had been more diligent, more careful and farsighted. That is a matter relating to the management of the undertaking and unless mala fides are alleged or proved, the Industrial Tribunal cannot exceed its jurisdiction in dealing with the dispute whether layoff was justified. The Industrial Tribunal would not sit as an appellate Court over the acts of management of the employer so as to investigate whether a more prudent management could have avoided the situation which led to lay off. 5. In the case in hand, it appears that the learned Member of the Industrial Court, Nagpur considered the fact that the Oil Companies suspended the license of the petitioner to manufacture the gas cylinders. 5. In the case in hand, it appears that the learned Member of the Industrial Court, Nagpur considered the fact that the Oil Companies suspended the license of the petitioner to manufacture the gas cylinders. There was documentary evidence in the form of Exh.47A and 47B before the Industrial Court. Exh.47A is the communication/letter dt.19.8.2004 issued by the Indian Oil Corporation Ltd. to the petitioner herein stating that one cylinder manufactured by the petitioner was sent for test to LERC and it did not meet the specification of percentage elongation. Therefore, the petitioner was advised to suspend production and dispatches of LPG cylinders with immediate effect and to take corrective action to get it duly verified by BIS (Bureau of Indian Standards). While Exh.47B is a letter from the BIS which advised the petitioner herein to improve quality of their product within one month from the date of issuance of letter, failing which they will take action including stopping marking as per procedure of BIS. Thus, the sample cylinder which was sent for test was not as per the required specification for which the petitioner was advised to take corrective measures immediately. And hence, the petitioner was also advised to suspend production and discharge of LPG cylinders with immediate effect. 6. Moreover, para 10 of the impugned Judgment of the Industrial Court, Nagpur shows that Exh.51A is a letter written by the petitioner herein to the Assistant Commissioner of Labour, in which it is mentioned that, at the relevant time, the petitioner was having order of 2000 cylinders from Bharat Petroleum. It is further mentioned therein that the petitioner was also having orders of monthly 3000 hot repairs cylinders. Letter dt.1.11.2004 written by the petitioner also shows that the petitioner was having orders for manufacturing 5000 cylinders. Since all these letters are stated to be written by the petitioner/Company itself, there is no reason to doubt the contents therein. 7. Though reply on record is filed by respondent no.1 herein, at the time of hearing neither the respondents nor their Counsel remain present. In the reply, it is mentioned that, by letter dt.19.11.2004, the petitioner has informed regarding the order of hot repairs of 3540 cylinders. It is also mentioned that by letter dt.1.11.2004 the petitioner has issued proclamation that they can provide 500 cylinders per month. In the reply, it is mentioned that, by letter dt.19.11.2004, the petitioner has informed regarding the order of hot repairs of 3540 cylinders. It is also mentioned that by letter dt.1.11.2004 the petitioner has issued proclamation that they can provide 500 cylinders per month. It is further submitted that the petitioner herein is running the same industry at Burujwada, Tah.Saoner, Distt. Nagpur under the name and style “Khara Gas Cylinders, Burujwada, Saoner” and has shifted the machineries there. It is submitted by the respondent that powercut by the M.S.E.B. was not the fault of the respondents herein and the petitioner has created such a situation so as to take the benefit of layoff. Ultimately, it is prayed by the respondent that the petition be dismissed with costs. 8. The ruling cited by the learned Counsel for the petitioner in the case of Tatanagar Foundry Co. Ltd. (cited supra) mentions that it is not open for the Tribunal to inquire whether the employer could have avoided layoff if he had been more diligent, more careful and farsighted. That is the matter relating to the management of the undertaking and unless mala fides are alleged or proved, the Industrial Tribunal cannot exceed its jurisdiction in dealing with the dispute whether layoff was justified. Thus, the Industrial Court can interfere only when the malafides are alleged and are sufficiently proved. That being so, when by reply it is contended that the action on the part of the petitioner/employer was mala fide and without justification and when the real reason for layoff was suppressed from the employees by the employer while declaring the layoff, the employer cannot avoid the liability of payment of wages for the period of such illegal layoff. In other words, when mala fides are alleged by the respondents and such mala fides appear clear from the documentary evidence on record, the employer would not be able to avoid liability for payment of wages for the period of layoff which was found illegal. 9. Taking stock of the above discussion, in view of Section 2 (kkk) of the Industrial Disputes Act, the reason given for layoff by the petitioner as shortage or non-availablity of orders appear contrary to facts and was rightly found as illegal and without justification by the learned Industrial Court. 9. Taking stock of the above discussion, in view of Section 2 (kkk) of the Industrial Disputes Act, the reason given for layoff by the petitioner as shortage or non-availablity of orders appear contrary to facts and was rightly found as illegal and without justification by the learned Industrial Court. That being so, the learned Industrial Court has rightly held it proved that the petitioner had engaged in unfair labour practice under Item 9, Schedule IV of the MRTU and PULP Act. When declaration of layoff in view of Item 9, Schedule IV of MRTU and PULP Act, 1971 was held to be illegal, consequently the employees/respondents herein were rightly held entitled for full wages during the period of layoff by the learned Industrial Court. The petition is, therefore, meritless and it stands dismissed accordingly. Rule is discharged. No order as to costs.