Industrial Disputes Act, 1947 — Section 25-O — Procedure for closing down an undertaking — Right to close down business is integral to right to carry on business under Article 19(1)(g) but subject to reasonable restrictions — Section 25-O provides a detailed procedure for obtaining prior permission for closure — Appropriate Government must conduct an enquiry and grant a hearing before passing a reasoned order — If no order is communicated within 60 days, permission is deemed to be granted.

THE APPEALS

BACKGROUND TO THE WRIT PETITIONS

THE IMPUGNED JUDGMENT

SUBMISSIONS OF THE PARTIES

QUESTIONS TO BE CONSIDERED

ANALYSIS AND DISCUSSION

CONCLUSION

[1] Hereinafter ‘impugned judgment’

[2] Abbreviated as ‘HSML’

[3] Abbreviated as ‘BIL’

[4] Abbreviated as ‘JWA’

Date: 24th May 2019

To, M/s Harinagar Sugar Mills Limited 207, Kalbaddevi Road, Mumbai-400002, Maharashtra, India

CC: World Trade Centre, Centre-1, 10th Floor, Caffe Parade, Mumbai-400 005

Kind Attention : Mr. Ashok Kumar Jasrpuria Sub : Termination of the job work Agreement Ref: a. Job work Agreement dated 22nd May, 2007.

b. Job Work Agreement Renewal dated 23rd Oct, 2013 (effective from 18th Feb 2013 till 17th Feb 2023)

Dear Sir,

We refer to job work agreement dated 22nd May, 2007 entered for period of 10 years effective from 21st February, 2003 and renewed on same terms and conditions for another period of 10 years effective from 18th February, 2013 whereby based on your representations, we have appointed you as our Contract Manufacturer on the terms and conditions contained therein.

Pursuant to clause 20.3.1 of the Job Work Agreement, we hereby serve you One Hundred Eight (180) days written notice commencing from 1st June 2019 (“Effective date”). The business relationship between the parties under the Agreement shall stand terminated on the close of business hours of 27th November, 2019.

You are requested to discontinue the operations under the agreement accordingly upon termination and cease to the know-how-return, all copies of the Knowhow without retaining any part thereof, and deliver entre quantity of goods manufactured, ingredients, packing material and Raw Material etc. which are in your possession or custody as per the terms of the agreement.

Further, you are requested to return all the documents containing information relating to products and Intellectual Property Rights of the Company and refrain from sharing, exchanging or selling or making any copies, summaries or transcripts of confidential information of the Company.

Sd/-

Britannia Industries Ltd.”

(Emphasis supplied)

Pl. Correspondence to: L.B.S. Marg. Bhandup (W), Mumbai-400078.

Ref No.

Dated : 28.08.2019

From-XXIV-C

(To be submitted in triplicate) [See Rule 82-B(1)]

From of application for permission of closure to be made by an employer under sub-Section (1) of Section 25-O of the Industrial Disputes Act, 1947 (14 of 1947)

To,

The Secretary to the Government of Maharashtra Industries, Energy and Labour Department, Mantralaya, Mumbai-32.

Sir,

Under Section 25-O of the Industrial disputes Act, 1947 (14 of 1947), I hereby inform you that I propose to close down the undertaking specified below.

M/s Harinagar Sugar Mills Ltd. (Biscuit Division), (herein after referred to as Biscuit Division), L.B.S. Marg, Bhandup (W), Mumbai-400078 w.e.f.

28/11/2019.

The Biscuit Division had entered into, a job, work agreement with M/s Britannia Industries Ltd. (BIL) to manufacture biscuits of Britannia brand. BIL used to forward to the Biscuit Division its weekly plan as per the market demand of various varieties of Britannia Brand. The Biscuit Division then used to manufacture the biscuits as per the plan forwarded by BIL in the factory premises A written termination notice was received by the Biscuit Division on 31-05-2019 from BIL stating that the business relationship between the parties shall stand terminated on the close of business hours, of 27/11/2019. Thus BIL has terminated the job work agreement with the Biscuit Division and the said Division has no other manufacturing avenue, since the said Division was manufacturing biscuits only for BIL. In view of the above, the Biscuit Division has no other alternative but to close down, the manufacturing activities.

2. The number of workmen whose service will be terminated on account of the closure of the undertaking is 178 permanent workmen.

3. Permission is solicited for the proposed closure.

4. I hereby declared that in the event of approval for the closure being granted every workmen in the undertaking to whom sub-section (9) of the said section 25-O applies will be given notice and paid compensation as specified in section 25N of the Industrial Disputes Act, 1947 (14 of 1947), as if the workman had been retrenched under that section.

Yours faithfully

For Harinagar Sugar Mills Ltd. (Biscuit Division)

Sd/- Illegible (Authorised Signatory)

CC: 1) The Commissioner of Labour, Maharashtra, Mumbai

2) The Industries Commissioner, Maharashtra, Mumbai

3) The Joint Director of Industries, Mumbai”

(Emphasis supplied)

[5] Hereinafter, ‘the Act’

Dated : 25TH September, 2019

To,

Authorised Signatory,

M/s. Hari Nagar Sugar Mills Limited,

L.B.S. Marg, Bhandup (W) Mumbai-400 078.

Subject:- Application for obtaining permission U/s. 25(O)(1) for closing down establishment of M/s Hari Nagar Sugar Mills Ltd. at L.B.S. Marg, Bhandup (W), Mumbai-78

Reference: Your application dated 28/8.2019.

Sir,

With reference to the above referred application, you as authorised signatory of M/s. Hari Nagar Sugar Mills Ltd. have submitted an application to the Government on 28/8/2019 u/s 25(O)(1) of the Industrial Disputes Act, 1947 for closing down the unit at L.B.S. Marg, Bhandup (W) Mumbai-78.

2. On reviewing the said application it is observed that the job contract agreement signed by M/s. Hari Nagar Sugar Mills Ltd. with M/s. Britania Industries Ltd. for production of biscuits will be cancelled with effect from 27.11.2019 and therefore the management of the Company has given the reason that the said Biscuit Division will not be able to provide any work in the said Division, and therefore the application to obtain permission to close down said Biscuit Division was submitted to the Government on 28.08.2019.

3. However, no pros and cons about the efforts for not closing down the said Unit were discussed/enlisted in the said application. Also, any justifiable and consummate reasons were also not provided for closing down the said Division. Therefore, it will be possible to take action only if you can submit the application again by providing explanation regarding other efforts initiated by you for not closing down the Division, providing justifiable as well as consummate rationale for this action.

Yours faithfully, Signed

Dy. Secretary, Govt. of Maharashtra

Copy :

1. Hon. Labour Commission, Kamgar Bhavan, C-20, E-Block, Bandra-Kurla Complex, Bandra (E), Mumbai-400 051.

2. Private Secretary to Hon. Minister (Labour)”

(Emphasis supplied)

Ref. No.76/19-20

Date: 10.10.2019

To

Shri S.M. Sathe, The Dy. Secretary, State of Maharashtra Mantralaya Mumbai

Sub: Permission sought under Section 25-(O)(I) of Ld. Act for closure of M/s. Harinagar Sugar Mills Ltd. (Biscuit Division)

Ref: Your letter dated 25.09.2019.

On 01.10.2019 we have received your letter dated 25.09.2019 with regard to the aforesaid subject.

It is a fact that for last 32 years, the Company used to do job work of manufacturing biscuits only for Britannia Industries Ltd. For manufacturing biscuits for Britannia Industries Ltd., the raw material as well as necessary plant and machinery used to be provided and installed by Britannia Industries Ltd. After receiving termination of Job work agreement from BIL, the Company Immediately persuaded the management of BIL to continue agreement and the job work with the Company. However, said persuasion did not work or yield any result. The Company had then approached other biscuit manufacturers such as M/s. Mondelez India Limited and Us. ITC Ltd. On 15.07.2019, the top management of the Company had meeting with Mr. T. Arunkumar, CMO, Manager of M/s. Mondelez India Limited and then as per his requirement had forwarded e-mail on 24.07.2109. However, thereafter there was no response. Similarly the top management of the Company had discussed with Mr. Divi of M/s. ITC, Foods. However, on 17.07.2019 Mr. Div replied that there is no requirement of contract manufacturing unit to them at present. Once again on 24.07.2019 mail was forwarded to Mr. Divi of M/s. ITC Foods but there was no response to the said mail. We enclose copies of emails forwarded to M/s. Mondelez India Ltd. and Ms. ITC Foods The management of the Company had also talked and discussed with Mr. Ajay Chauhan of Parle Biscuits to provide job work to the Company. However, there was no positive response even from Parle Biscuits.

The reason for closing down the manufacturing activities is there is no job work which can be done in the said factory. As stated in the closure application the company for last 32 years was doing only the job work for Britannia Industries Ltd. And the efforts mentioned hereinabove will support the contention of the company that there is no other way out but to close its manufacturing operation.

For Harinagar Sugar Mills Ltd. (Biscuit Division) Sd/-

Authorised Signatory)”

(Emphasis supplied)

Firstly, the Court discussed the scheme of Section 25-O of the Act and found that an application for closure has to be made to a competent authority at least 90 days prior to the date from which the closure is sought to be made effective; the reasons for such closure must be clearly stated; on receipt of such application, the ‘appropriate Government’ is to make an enquiry; provide an opportunity for hearing all concerned – workmen, employer and persons interested in closure, and then pass a reasoned order, also keeping in view interests of the general public. Section 25-O(3) provides that if such an appropriate authority fails to communicate an order made thereby, granting or denying permission within 90 days of the application being preferred, it shall be deemed that the permission was granted at the expiry of 60 days. Other parts of Section 25 of the Act were also taken note of such as the power of review, the remaining in force of the order of the competent authority for a period of one year etc.

Secondly, it was observed that the case of the petitioners (appellants before us) was that orders had not been passed by the competent authority within the statutorily prescribed time frame, and consequently, the deeming fiction provided for in the Act would come into force and permission of closure would be deemed granted upon the expiry of 60 days from the application, since more than 90 days had passed since such making of application. The stand of the State was also taken into account – which was that the communication dated 25th September 2019 constituted an order refusing the grant of requisite permission. It would be appropriate to extract the consideration made by the High Court, of these contrasting submissions. It is as follows :

Thirdly, the contention of HSML that the application dated 28th August 2019 was complete in all respects and it ought to have been treated as such was considered. It was submitted that the letter dated 10th October 2019 (reproduced supra) was in response to the authorities asking them to resubmit. They supplied thereby, additional reasons for closure and the steps taken to prevent that eventuality. It was held that since the undisputed position is that vide letter dated 10th October 2019 HSML sought to furnish additional reasons, that ipso facto would amount to an acceptance that the application was not complete in all respects. That being the case, the deeming fiction would not come into play. Since the application was deficient, the State Government need not pass orders thereon. It was thereafter held as under:

The Writ petitions were dismissed.

i. The impugned judgment is based on an erroneous reliance on the ‘wrong form’, which originated out of a submission of learned Counsel for the State. Reliance was placed by the learned Division Bench on Form XXIV and instead, it should have considered Form XXIV-C.

ii. The finding that the applications were incomplete is based on a misunderstanding/misapplication of the forms.

iii. Noting in the internal office file cannot be used to construe what constitutes an order. Reference is made to Bachhittar Singh v. State of Punjab[6]; Sethi Auto Services Station v. DDA[7]; and Shanti Sports Club v. Union of India[8] to submit that the internal file noting does not constitute an order. Furthermore, even such a contention that the letter dated 25th September 2019 is based on such noting is belied, for it does not say so. Instead, it only asks for details of the efforts made to avoid closure.

iv. An application for closure can only be disposed of by an order in accordance with Section 25-O(2). If it is not so done, what has been provided for in Section 25-O(3) will kick in.

v. The previous iteration of Section 25-O was struck down by this Court vide its judgment in Excel Wear v. Union of India[9] on the ground that it did not prescribe a time limit for deciding the applications for closure. It was found that the restrictions were not in accordance with Article 19(6) of the Constitution of India. The amended iteration was upheld vide judgment in Orissa Textile and Steel v. State of Orissa[10], wherein it was held that the requirement to conduct an enquiry, give a hearing, pass a reasoned order, and also the time limit was the curing of defects present in the previous version of the section. It has been so submitted by the appellants to show that the 60-day requirement is mandatory. If not so observed, it would violate Article 19(1)(g).

vi. It has not been shown by the respondents, how the applications made by the appellants are defective/incomplete. Providing of further information cannot mean that the original application was defective. The decision in State of Haryana v. Hitkari Potteries[11] was relied upon to show that even when the application was belatedly rejected on the ground that it was incomplete in certain respects, this Court held the deemed permission to be granted.

vii. The 60-day time period provided for in the Act cannot be extended, including on the pretext of resubmission of the application for closure. There were two letters issued by the State authority, one on 25th September 2019 and the other on 4th November 2019, with the latter one being beyond the said time period. Thereafter were two further letters dated 20th and 22nd November 2019 directing their presence for a meeting, both clearly beyond the time limit. Further, it is said that there is no provision for resubmission. Permitting the same would unsettle the scheme of the law.

viii. The Labour Minister is the “appropriate Government” within the meaning of the Act, hence all actions contemplated under Section 25-O could have been undertaken by him only. No further delegation thereof is provided for or permissible without notification to such effect under Section 39 of the Act. Be that as it may, it has been held in Orissa Textile and Steel (supra) that sub-delegation of quasi judicial function is impermissible. No communication has been addressed by the ‘appropriate Government’ within the time frame.

ix. The letter dated 25th September 2019 is by no means an order. Had it been so, there was no basis for the State’s further letters. In fact, letter dated 4th November 2019 makes reference to the application for closure dated 28th August 2019. Said letter was also not marked to the workmen/their representatives which is a requirement under Section 25-O(2).

i. The first response of the State to the closure application, i.e., letter dated 25th September 2019 is not within the sphere of challenge.

ii. The communication which took place regarding the alleged closure of HSML and Shangrila[12] total approximately 300 workers, and non-inclusion of their recognised union in such discussions is absolutely detrimental to the interests of these workers.

iii. The intent of Section 25-O is to protect the fundamental rights of the employees, i.e., livelihood. The stand of the State is in consonance therewith, keeping in view important factors such as genuineness and adequacy of reasons.

iv. No question of law arises in the present matter which requires or would justify, the interference of this Court under its jurisdiction under Article 136 of the Constitution of India.

v. The deeming provision under Section 25-O(3) of the Act has to be read in continuation with Section 25-O(1) thereof. Since the employees were never informed of the enquiry as contemplated under Section 25-O(2) of the Act and the same never took place, closure cannot be deemed to have been granted thereunder.

vi. The incompleteness of the applications was accepted by the appellants themselves since they produced additional reasons. Also, the argument of respondent No.1 that internal noting of the file being used to show that the file had not been delayed, has been adopted by the Respondent-Union.

vii. Since the learned Industrial Tribunal had granted stay on 26th November 2019, and the writ petition subject matter of these appeals, was filed before the High Court on the same day, there has been no effective order of closure thus far.

viii. The question of Respondent-State as to whether the workers could be accommodated in other ongoing concerns under the control of the HSML – was justified. None of the monetary proposals have been accepted by the workers as placed before the Court and so, they are entitled to full benefits of Section 25-O(6) of the Act.

ix. In furtherance of their submissions, reliance is placed on a judgment of the High Court of Judicature at Madras in Sree Meenakshi Textile Mills Ltd. v. Madurai Textile Workers Union (CITU) & Ors.[13]

[13] 1979 (38) FLR 213

A. Whether letter dated 25th September 2019 can be construed to be an order – Connectedly, whether the appellants would be entitled to the relief of deemed closure, as on 27th October 2019 by virtue of the deeming fiction present in Section 25-O(3) of the Act?

B. What would be the meaning of the phrase ‘appropriate Government’ and whether in the facts of this case, it was the appropriate Government acting in the matter of the closure – if not what is the effect in law, thereof?

“7. Article 19(1)(g) of the Constitution guarantees that all citizens have the right to practise any profession or to carry on any occupation or trade or business, and subsection (6) of the Article authorises legislation which imposes reasonable restrictions on this right in the interests of the general public. It was not disputed that in order to determine the reasonableness of the restriction regard must be had to the nature of the business and the conditions prevailing in that trade. It is obvious that these factors must differ from trade to trade and no hard-and-fast rules concerning all trades can be laid down. It can also not be denied that the State has the power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public. Laws prohibiting trades in noxious or dangerous goods or trafficking in women cannot be held to be illegal as enacting a prohibition and not a mere regulation. The nature of the business is, therefore, an important element in deciding the reasonableness of the restrictions. The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, order and morals of the community…”

Second

A Constitution Bench of this Court in Hindustan Antibiotics Ltd. v. Workmen[15] held as below noting the object of industrial law :

This Court in Ajaib Singh v. Sirhind Coop. Marketing-cum-Processing Service Society Ltd. [16], in the paragraphs extracted below, discusses the intent of the legislation and its history, in the following terms :

“[25-O. Procedure for closing down an undertaking.-(1) An employer who intends to close down an undertaking of an industrial establishment to which this Chapter applies shall, in the prescribed manner, apply, for prior permission at least ninety days before the date on which the intended closure is to become effective, to the appropriate Government, stating clearly the reasons for the intended closure of the undertaking and a copy of such application shall also be served simultaneously on the representatives of the workmen in the prescribed manner: Provided that nothing in this sub-section shall apply to an undertaking set up for the construction of buildings, bridges, roads, canals, dams or for other construction work.

(2) Where an application for permission has been made under sub-section (1), the appropriate Government, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen and the persons interested in such closure may, having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the general public and all other relevant factors, by order and for reasons to be recorded in writing, grant or refused to grant such permission and a copy of such order shall be communicated to the employer and the workmen.

(3) Where an application has been made under sub-section (1) and the appropriate Government does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days.

…”

(a) at least 90 days before the date of intended closure;

(b) stating reasons for such closure;

(c) undertaking that the copy of this application has been served on the representatives of the workmen.

As per sub-section (2), the appropriate is to, (a) Making a suitable enquiry;

(b) After providing a reasonable opportunity of hearing to the employer, the workmen and those interested in the closure of such business;

(c) And considering the genuineness, adequacy of reasons, interests of the general public & all other relevant factors; by an order in writing, recording reasons, grant or refuse such permission. Such an order is to be communicated to the employer and the workmen.

Sub-section (3) deems the grant of permission for closure as requested if the appropriate Government does not, within sixty days of the application, make an order.

“20… But then, as pointed out by this Court in Hatisingh case the right to close down a business is an integral part of the right to carry it on. It is not quite correct to say that a right to close down a business can be equated or placed at par as high as the right not to start and carry on a business at all. The extreme proposition urged on behalf of the employers by equating the two rights and placing them at par is not quite apposite and sound. Equally so, or rather, more emphatically we do reject the extreme contention put forward on behalf of the Labour Unions that right to close down a business is not an integral part of the right to carry on a business, but it is a right appurtenant to the ownership of the property or that it is not a fundamental right at all. It is wrong to say that an employer has no right to close down a business once he starts it. If he has such a right, as obviously he has, it cannot but be a fundamental right embedded in the right to carry on any business guaranteed under Article 19(1)(g) of the Constitution.”

“18. We also see no substance in the contention that the amended section merely deals with the procedural defects pointed out in Excel Wear case [(1978) 4 SCC 224 : 1978 SCC (L&S) 509 : (1979) 1 SCR 1009] and does not deal with the substantive grounds set out in Excel Wear case [(1978) 4 SCC 224 : 1978 SCC (L&S) 509 : (1979) 1 SCR 1009] . In our view the amended Section 25-O is very different from Section 25-O (as it then stood). It is now more akin to Section 25-N (as it then stood) the constitutional validity of which was upheld in Meenakshi Mills case [(1992) 3 SCC 336 : 1992 SCC (L&S) 679] . In Excel Wear case [(1978) 4 SCC 224 : 1978 SCC (L&S) 509 : (1979) 1 SCR 1009] it has been accepted that reasonable restrictions could be placed under Article 19(6) of the Constitution. Excel Wear case [(1978) 4 SCC 224 : 1978 SCC (L&S) 509 : (1979) 1 SCR 1009] recognizes that in the interest of general public it is possible to restrict, for a limited period of time, the right to close down the business. The amended Section 25-O lays down guidelines which are to be followed by the appropriate government in granting or refusing permission to close down. It has to have regard to the genuineness and adequacy of the reasons stated by the employer. However, merely because the reasons are genuine and adequate cannot mean that permission to close must necessarily be granted. There could be cases where the interest of general public may require that no closure takes place. Undoubtedly where the reasons are genuine and adequate the interest of the general public must be of a compelling or overriding nature. Thus, by way of examples, if an industry is engaged in manufacturing of items required for defence of the country, then even though the reasons may be genuine and adequate it may become necessary, in the interest of the general public, not to allow closure for some time. Similarly, if the establishment is manufacturing vaccines or drugs for an epidemic which is prevalent at that particular point of time, interest of the general public may require not to allow closure for a particular period of time. We must also take a note of sub-section (7) of the amended Section 25-O which provides that if there are exceptional circumstances or accident in the undertaking or death of the employer or the like, the appropriate government could direct that provision of sub-section (1) would not apply to such an undertaking. This, in our view, makes it clear that the amended Section 25-O recognizes that if there are exceptional circumstances then there could be no compulsion to continue to run the business. It must however be clarified that this Court is not laying down that some difficulty or financial hardship in running the establishment would be sufficient. The employer must show that it has become impossible to continue to run the establishment. Looked at from this point of view, in our view, the restrictions imposed are reasonable and in the interest of the general public.” (Emphasis supplied)

i. the right to close the business is subject to the interest of the general public;

ii. any application seeking permission for closure must disclose adequate and genuine reasons which the authority has to have regard for;

iii. in certain cases, however, even if the reasons are genuine and adequate, it does not mean that permission to close ought to be granted;

iv. if it is found that the reasons are generally adequate, and despite that the appropriate Government decides for refusal of permission of foreclosure, then the interest of the general public involved in that particular case must be “compelling” and “overriding”;

v. financial difficulty on its own cannot constitute the reason for shutting down the business. An employer must demonstrate exceptional circumstances or an impossibility of running the business.

“39. Delegation of powers.- The appropriate Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act or rules made thereunder shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also,–

(a) where the appropriate Government is Central Government, by such officer or authority subordinate to the Central Government or by the State Government, or by such officer or authority subordinate to the State Government, as may be specified in the notification; and (b) where the appropriate Government is a State Government by such officer or authority subordinate to the State Government as may be specified in the notification.”

[17] (2018) 8 SCC 215

“10. In recent times, judicial review of administrative action has become expansive and is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded. State activity too is becoming fast pervasive. As the State has descended into the commercial field and giant public sector undertakings have grown up, the stake of the public exchequer is also large justifying larger social audit, judicial control and review by opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers. That very often involves large stakes and availability of reasons for actions on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process. The submission of Mr. Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the concerned parties unless there be any specific justification not to do so.” (Emphasis Supplied)

[18] Mahabir Jute Mills Ltd. v. Shibban Lal Saxena, (1975) 2 SCC 818

[19] (1990) 3 SCC 280

5. Shri Rohatgi, learned senior counsel, on instructions, states that a sum of Rs.4 Crores (approximately) already stands deposited. In addition, a further sum of Rs.10 crores can be paid by the petitioner to the respondent workmen. He clarifies that the said amount would be in addition to the amount of gratuity (approximately Rs.4 crores) which the workmen are otherwise entitled to.

6. The entire sum, i.e., the amount of gratuity plus the enhanced amount can be distributed as compensation amongst the workmen who may be eligible and entitled to, for being on the rolls of the company.

7. This, of course, is by way of an endeavour to put an end to the controversy and without prejudice to the respective rights and contentions of the parties.”