The Management of Express Newspapers
Ltd. Vs. Workers & Staff Employed Under It & Ors [1962] INSC 224 (2
August 1962)
GAJENDRAGADKAR, P.B.
GAJENDRAGADKAR, P.B.
DAS, S.K.
MUDHOLKAR, J.R.
CITATION: 1963 AIR 569 1963 SCR (3) 540
CITATOR INFO :
D 1967 SC 469 (12) RF 1967 SC1869 (2) R 1968
SC1002 (8) R 1969 SC 90 (8) R 1970 SC1960 (3) RF 1978 SC1428 (4) RF 1979 SC1356
(14)
ACT:
Industrial Dispute-Validity of
reference-Lockout or Closure -Whether industrial dispute -Determination of
jurisdictional fact by Tribunal--High Court's power to issue Writ--Order of
reference-Fair and reasonable construction--Constitution of India. Art.
226--Industrial Disputes Act. 1947 (14 of 1947), ss. 10 (1) (d), 10 (3), (4).
HEADNOTE:
The appellant is a private limited company
and it carries on the business of printing and publishing newspapers and,
periodicals. In 1959 the appellants intimated the closure of its business in
respect of its various publication at Madras. On the, same day the appellant's
Board of Directors resolved to sell items of printing machinery and equipment
to one private limited company and the next day the appellant inserted
advertisement in a local newspaper announcing that the premises of the
appellant is "To let".
Thereafter the respondents struck work. The
Government at this stage issued two orders. By one of these orders the
Government referred the dispute to Industrial Tribunal under s. 10 (1) (d) of
the Industrial Disputes Act. The other order which was under s.10 (3) of the
Act prohibited the continuance of the strike and lockout in the appellants
concern.
The appellant thereupon filed two writ
petitions against the above orders of the Government. Both petitions were heard
together by a Single judge who held that since the order under s. 10 (3) was a
mere administrative order it was not open to the Court to quash it but since
that order was not without jurisdiction the appellant was entitled to ignore
it. With regard to the other writ petition he held that the High Court had
jurisdiction to entertain it even at an interlocutory stage and on the merits
of the case he found that the action of the appellant did not amount to a
lockout but a closure and the dispute between the parties was not an industrial
dispute. The respondents then preferred two appeals to the Division Bench
concerning the order of the Government under S. 10 (3) the provision Bench
upheld the decision if the Single Bench and 541 dismissed the appeal. With
regard to the other appeal it help that even though the High Court had
jurisdiction to entertain the writ petition since the determination of the
question whether the reference was valid or not involved many complicated
questions of fact the matter must be fully investigated and tried in the first
instance by the Tribunal.
The appellant then appealed to this Court.
The main contention raised in the appeal was that since the action of the
appellant did not amount to a lockout but a closure there was no industrial
dispute. That being the position the reference was invalid and the Tribunal had
no jurisdiction to embark on the proposed enquiry. The next contention was that
issue No. 1 in the reference which related to transfer of the publication and
business of the appellant was on the face of it-bad since the appellant was entitled
to make such transfer and the respondents had no right to raise an industrial
dispute with regard to such transfer. Thirdly it was urged that the wording of
issue No. 2 showed that the Government had already determined the question
raised by that issue and there was nothing left to the decision of the
Tribunal.
Held, that if the Industrial Tribunal
proceeds to assume jurisdiction over a non-industrial dispute that can be
successfully challenged before the High Court by a petition for an appropriate
writ. The finding on the preliminary issue whether an action of a party amounts
to a lockout or a closure is a finding on a jurisdictional fact. It is only
when it is found that the action amounts to a lockout that the Tribunal has
jurisdiction to deal with the merits of the dispute. As a general rule it is
not proper. or appropriate that the initial jurisdiction of a special tribunal
to deal with jurisdictional facts should be circumvented and the decision of
such a preliminary issue brought before the High Court on its writ
jurisdiction.
On the facts and circumstances of the case it
would be idle to contend that issue No. 1 related to the transfer of business
which could not be the subject matter of an industrial dispute.
Courts should construe an order of reference
not too technically or in a pedantic manner but fairly and reasonably.
Construed in this manner and having regard to the content of the dispute
covered by issue No. 2 that issue was not so worded exclude the jurisdiction of
the Tribunal to decide the question whether the appellant's action amounted to
a closure or not.
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 574 and 575 of 1961.
Appeals by special leave from the judgment
and order dated October 13, 1959, of the Madras High Court in writ Appeals
Nos.73 and 85 of 1959.
A. V. Viswanatha Sastri, R. Ganapathy Iyer
and G. Gopalakrishnan, for the appellants.
M.K. Ramamurthy, B. K. Garg and T. S.
Vankataraman, for respondents Nos. 1 and 2.
A. Ranganathan Chetty and A. V. Rangam, for
respondent No. 4.
1962. August 2, The Judgment of the Court was
delivered by GAJENDRAGADKAR, J-On the 30th of April, 1959, the Madras
Government referred to the Industrial Tribunal, Madras, for its adjudication
two industrial issues which had arisen between the appellant The Management of
Express Ltd. and the respondents, its workmen. These two items of dispute were
the, specified in the Order of Reference:
1. Whether the transfer of the publication of
Andhra Pradesh and Andhra Prabha Illustrated Weekly to Andhra Prabha Private
Ltd. In Vijayawada is justified and to what relief the workers and the working
Journalists are entitled ? 2, Whether the strike of the workers and working
Journalists from 27th April, 1959, and the consequent lookout by the management
of the Express Newspapers Private Ltd. are Justified and to what relief the
workers and the working Journalists are entitled? This reference was made under
section 10 (1) (d) of the Industrial Disputes Act, 1947, (XIV of 1947)
(hereinafter called the Act), 543 On the same day., the Government of Madras
issued another Order under section 10 (3) of the Act prohibiting the
continuance of the strike and the lookout in the appellant concern. This Order
was issued because the Government was of the opinion that it was expedient and
necessary to prohibit the continuance of the said strike and lookout.
Against the latter Order, the appellant filed
a writ petition in the Madras High Court (No. 443 of 1959) on lot of May, 1059,
whereas on the 5th of May, 1959, it filed a writ petition No. 450 of 1959
against the Order by which the dispute in question was referred to the
Industrial Tribunal for its adjudication. Both the writ petitions were heard
together by Bala krishna Ayyar J. He held that the Government Order issued
under s. 10 (3 of the Act was an administrative order and it was doubtful
whether it would be open to the Court to quash the said Order as it stood.
Even so, the learned Judge held that the
Government had no Jurisdiction to make the said Order and that the appellant
was entitled to ignore it. In the opinion the learned Judge the ends of Justice
would be met if this clarification was made and so, that is the only order
which he passed on writ petition No. 433 of 1959.
In regard to writ petition No. 450 of 1959,
the learned Judge hold that he had jurisdiction to entertain the said writ
petition even at an interlocutory stage and so, he rejected the preliminary
objection raised by the respondents. On the merits, he took the view that what
the appellant had done did not amount to a lookout but a closure and so, the
substantial part of the dispute between the parties did not amount to an
industrial dispute at all.
That is why he came to the conclusion that it
is only the latter parts of the first and second questions which could be tried
by the Tribunal. In the result, the petition filed by the appellant was partly
allowed 544 and the Tribunal was directed to deal with only the second part of
the two questions framed by the impugned reference.
This decision was challenged by the
respondents by preferring two appeals before a Division Bench of the Madras
High Court. The order passed on W.P. No. 44311959 gave rise to writ appeal No.
85 of 1959, whereas the order passed on writ petition 450/1959 gave rise to writ
appeal No. 73 of 1959. The appellate Court has agreed with the trial Judge in
holding that the order issued by the Government under s.
10(3) of the Act was ill-advised and without
jurisdiction and so, the appellant can with impunity ignore the said order. In
regard to the main point of controversy between the parties as to the validity
of the reference itself, the Appeal Court took the view that the questions
which had to be decided in dealing with the appellant's contention that the
reference was invalid, were complex questions of fact and that it would be
appropriate that the said questions should be fully investigated and tried in
the first instance by the Industrial Tribunal itself. In other words, the
Appeal Court held that though; the High Court had jurisdiction to entertain an
application for a writ of Prohibition even at the initial stage of the
proceedings commenced before a Special tribunal, it would not be proper that a
writ of prohibition should be issued unless the disputed questions of fact were
tried by the said Special Tribunal in the first instance. On this view, the
order passed by the trial Judge has been modified and the disputes referred to
the Industrial Tribunal for its adjudication have been remitted to the said
Tribunal for its disposal in accordance with law. In making this Order, the
Appeal Court has indicated the nature of the dispute and the questions of. fact
which the Industrial Tribunal may have to try and the limits of its
jurisdiction. In the result, the writ apple No.73/1959 succeeded 545 whereas
writ appeal No..85/1959 failed. It is this decision of the Court of Appeal that
is challenged before us by Mr. Viswanatha Sastri on behalf of the appellant
Before dealing with the appeal on the merits, it is necessary to set out very
briefly the material facts which led to the present dispute between the
parties. The appellant in a Private Limited Liability Company incorporated
under the Indian Companies Act and it carries on the business of printing and
publishing newspapers and periodicals, viz., the Indian Express, Sunday
Standard (on Sundays), Dinamani, DinamaniKadir, Andhra Prabha, Andhra Prabha
Illustrated Weekly, and screen. These papers were being printed and published
by the appellant from Madras till the 27th April, 1959. On the 29th April,
1959, the appellant intimated the closure of its business in respect of its
various publications at Madras. The announcement made by the appellant in that
behalf indicated that its staff and workmen would be paid wages, one month's salary
in lieu of notice and compensation as laid down under s.25 (f) and s.25 (fff)
of the Act. It was also stated that similar wages and compensation would be
paid to journalists under the corresponding provisions of the working
Journalist (Conditions of Service and Miscellaneous Provisions) Act,1955. It
appears, on the same day, the appellant's Board of Directors resolved to sell
items of printing machinery and equipment to the Andhra Prabha (Private) Ltd.
for Rs.5,25,000/-. Accordingly in the 'Hindu' of the 30th April, 1959, an
advertisement was inserted by the appellant under 'the "To-Let"
column relating to the office accommodation and premises of the 'Express
Newspapers Private Ltd. It is this action of the appellant which as led to the
present dispute.
546 At this stage, it may be relevant to
refer very briefly to the background of the present dispute between the
parties.
It appears that between the appellant and its
employees a dispute arose on certain points including bonus in March, 1957.
This dispute was referred for industrial adjudication which ended in an award
in November, 1957. This award was challenged by the appellant by an appeal
before this Court and we were told that the appellant's appeal had
substantially succeeded. That is bow the dispute of 1957 ultimately ended.
In March, 1958, the appellant notified its
intention to retrench 69 workmen and that led to an industrial dispute which
was referred for industrial adjudication. The appellant raised a preliminary
objection about the incompetence of the reference and took the dispute to the
Madras High Court by its W. P. No. 810 of 1958. This objection was, however,
withdrawn on the 5th December, 1958. On the 12th October, 1958, the
respondents' Union made certain complaints to the State Government as a result
of which the Home Minister attempted to intervene, but his intervention was
unsuccessful. Soon thereafter, the appellant intimated its intention to close
down its publications at Madras and notified its workmen accordingly. The Home Minister
again intervened and this time his intervention was effective. As a result, a
settlement was reached between the parties which were embodied in a memorandum
drawn up on the 6th of November, 1958 under s.12 (3) of the Act. This
settlement was to operate for 2-1/2 years. The respondents' case is that Mr.
R.N. Goenka, the appellant's Chairman, agreed in the presence of the Minister,
Mr. Bhaktavatsalam and the Labour Commissioner, Mr. Balasundaram, that the
paper 'Andhra Prabha' would not be shifted for publication to Vijayawada during
the period of the settlement, and that the workmen would be continued 547 to be
employed as before at Madras, The respondents contend that this assurance was
given verbally but had not been included in the terms of memorandum. Broadly
stated, the respondents' case is that the transfer purported to have been
effected by the appellant on the 29th April, 1959, is in contravention of this
verbal assurance and it is urged that the verbal assurance given by the
appellant's Chairman constituted one of the terms of employment of the
respondents and as such, became a condition of their service. The impugned
transfer materially affects that condition of service.
In March, 1959, about 60 part-time delivery
boys demanded increased emoluments and when the said demand was not conceded,
they went on strike. The appellant suspended them, but at the instance of the
Conciliation Officer, they were taken back upon their tendering an apology and
the delivery boys there resumed duty. In March and April, 1959, the Madras
Union of Journalists began to protest to the Government against what it
apprehended was the proposed move of the appellant to transfer the publication
of the Andhra Prabha to Vijayawada in contravention of the verbal 'assurance given
to the respondents by the appellant's Chairman. These protests were followed by
a joint meeting of the General Body of the Express Newspapers (Private Ltd.,
Employees' Union and the Madras Union of Journalists, and at the said meeting a
resolution was passed condemning the transfer of the proprietary interest in
the two periodicals to an alleged 'benami' concern; this resolution
charaoterised the transfer as mala fide and illegal. This resolution was
followed by an intimation of strike on the 24th April, 1959, the appellant had
intimated to the respondents by its letter of the 23rd April, 1959, the facts
about the impugned transfer. The appellant plainly informed the respondents
that the 548 new concern at Vijayawada would take over the required workers and
that the decision to transfer could not be altered or revoked. After receiving
this communication, the respondents went on strike on the 27th April, 1959.
This strike was followed on the 29th April, 1959, by the announcement made by
the appellant about the closure of its business. that, in brief, is the
background of the present dispute between the parties.
The true legal position in regard to the
jurisdiction of the High Court to entertain the appellant's petition even at
the initial stage of the proceedings proposed to be taken before the Industrial
Tribunal, is not in dispute. If the action taken by the appellant is not a,
lookout but is a closure, bonafide and genuine, the dispute which the
respondents may raise in respect of such a closure is not an industrial dispute
at all. On the other hand, if, in fact and in substance, it is a lookout, but
the said action has adopted the disguise of a closure, and a dispute is raised
in respect of such an action, it would be an industrial dispute which industrial
adjudication is competent to deal with. The appellant contends that what it has
done is a closure and so.. the dispute in respect of it cannot be validly
referred for adjudication by an 'Industrial Tribunal. There is no doubt that in
law, the appellant is entitled to move the High Court even at the initial stage
and seek to satisfy it that the dispute is not an industrial dispute and so,
the Industrial Tribunal has no jurisdiction to embark upon the proposed
enquiry.
There is also no doubt that the proceedings
before, the -industrial Tribunal are in the nature of quasi-judicial
proceedings and in respect of them,,, a writ of certiorari can issue in a
proper case. If the Industrial Tribunal proceeds to assume jurisdiction over a
non-industrial dispute., that cm be. successful challenged before the High
Court by a Petition 549 for an appropriate writ, and the power of the High
Court to issue an appropriate writ in that behalf cannot be questioned.
It is also true that even if the dispute is
tried by the Industrial Tribunal, at the very commencement the Industrial
Tribunal will have to examine as a preliminary issue the question as to whether
the, dispute referred to it is an industrial dispute, or not, and the decision
of this question would inevitably depend upon the view which the Industrial
Tribunal may take as to whether the action taken by the appellant is a closure
or a lookout. The finding which the Industrial Tribunal may record on this
preliminary issue will decide whether it has jurisdiction to deal with the
merits of the dispute or not. If the finding is that the action of the
appellant amounts to a closure, there would be an end to the proceedings before
the Tribunal so for as the main dispute is concerned. If, on the other hand,
the finding is that the action of the appellant amounts to a lookout which has
been disguised as a closure, then the Tribunal will be entitled to deal with
the reference, the finding which the Tribunal may make on this preliminary
issue is a finding on a jurisdictional fact and it is only when the
jurisdictional fact is found against the appellant that the Industrial Tribunal
would have jurisdiction to deal with the merits of the dispute. This position
is also not in dispute.
The Court of Appeal has held that having
regard to the somewhat complex nature of the facts which have to be determined
in dealing with the,, preliminary issue, it would be appropriate that the
Industrial Tribunal which is specially appointed to try, such issues, should
first hold an enquiry, in respect of that issue. The, Court of Appeal;
has elaborately set out in its judgment the
pros and cons of the dispute and it has indicated some of 550 the facts on
which the two rival contentions are based. It, however, thought that having
regard to the nature of the enquiry involved in the decision of the preliminary
issue, it would be inappropriate for the High Court to take upon itself the
task of determining the relevant facts on affidavits. A proper and a more
appropriate course to adopt, it thought, would be to let the material facts be
determined by the Industrial Tribunal in the first instance.
That is why the Appeal Court was not inclined
to confirm the decision of the trial Court in W. P. No. 450/1959. The narrow
question which we are thus called upon to consider in the present appeal is
whether this view is erroneous in law.
It seems to us difficult to accept Mr.
Sastri's argument that the Appeal Court was in error in taking this view. As we
have just indicated, the legal position with regard to the,, jurisdiction of
the High Court is not in doubt. The only question on which the trial Court and
the Appeal Court have differed is in regard to the propriety or the
appropriateness of holding an enquiry on a complicated question of fact in writ
proceedings. It is well known that Industrial Courts are familiar with the
nature of the problem raised by the preliminary issue between the parties in
the present writ proceedings. In fact, Industrial Tribunals have been specially
established in order to deal with industrial disputes in different places. That
is one consideration which is relevant. The other consideration which is
equally material is that a question of this complicated character cannot be
satisfactorily dealt with merely on affidavits. The theoretical distinction
between a closure and a lockout is well settled. In the case of a closure, the
employer does not merely close down the place of business, but he opposes the
business itself; and so, the closure indicates the final and irrevocable 551
termination of the business itself. Lookout, on the other hand, indicates the
closure of the place of business and not the closure of business itself.
Experience of Industrial Tribunals shows that the Lookout is often used by the
employer as a weapon in his armoury to compell the employees to accept his
proposals just as a strike is a weapon in the armoury of the employees to
compell the employer to accept their demands. Though the distinction between
the two concepts is thus clear in theory, in actual practice it is not always
easy to decide whether the act of closure really amounts to a closure properly
so-called, or whether it is a disguise for a Lookout. In dealing with this
question industrial adjudication has to take into account several relevant
facts and these facts may be proved before the Industrial Tribunal either by
oral evidence, or by documentary evidence and by evidence of conduct and
circumstances. Whenever a serious dispute arises between an employer and his
employees in regard to a closure which the employees allege is a lookout, the
enquiry which follows is likely to be long and elaborate and the ultimate
decision has always to depend on a careful examination of the whole of the
relevant evidence. That being so, it seems to us that the course adopted by the
Appeal Court in the present proceedings is both proper and appropriate.
The High Court undoubtedly has jurisdiction
to ask the Industrial Tribunal to stay its hands and to embark upon the
preliminary enquiry itself The jurisdiction of the High Court to adopt this
course cannot be, and is indeed not, disputed. But would it be proper for the
High Court to adopt such a course unless the ends of justice seem to make it
necessary to do so ? Normally, the questions of fact, though they may be
jurisdictional facts the decision of which depends upon the appreciation of
evidence, should be left to be tried by the 552 special Tribunal constituted
for that purpose if and after the Special Tribunals try the preliminary issue
in respect of such jurisdictional facts, it would be open to the aggrieved
party to take that matter '"fore the High Court by a writ petition and ask
for an appropriate writ. Speaking generally, it would not be proper or
appropriate that the initial jurisdiction of the Special Tribunal to deal with
these jurisdictional facts should be circumvented and the decision of such a
preliminary issue be brought before a High Court in its writ jurisdiction. We
wish to point out that in making these observations, we do not propose to lay
down any fixed or inflexible rule; whether or not even the preliminary fact
should be tried by a High Court in a write petition, must naturally depend upon
the circumstances of each case and upon the nature of the preliminary issue
raised between the parties. Having regard to the circumstances of the present
dispute, we think the Court of Appeal was right in taking the view that the
preliminary issue should more appropriately dealt with by the Tribunal.
The Appeal Court has made it clear that any
party who feels aggrieved by the finding of the Tribunal on this preliminary
issue may move,, the High Court in accordance with law.
Therefore, we are not prepared to accept Mr.
Sastri's argument that, the Appeal Court was wrong in reversing the conclusion
of the trial Judge in so for as the Trial Judge proceeded to deal with the,
question as to whether he action of the appellant was a closure or a lookout.
Before we part with this topic, we wish to
make it clear that when the Tribunal proceeds to deal with the dispute between the
parties, it need not be influenced by the several observations made"
either by the trial Court or the Court of Appeal in respect of the transfer
effected by the appellant on the 29th April, 1959. In the course of their
judgments, both the trial,, Court and the Court of Appeal 553 have indicated
their preference for one view or the other and for fair trial of the issue
before a Tribunal, it is of utmost importance that we ought to emphasise the
fact that these observations either for the appellant or against it should be
treated as obiter and the Tribunal should; deal with the dispute on the merits
independently and uninfluenced by them observations.
Mr. Sastri then contends that on the face of
it, the, reference is bad. His argument, is that issue No.1 which deals with
the transfer of the Andhra Prabha and Andhra Prabha Illustrated Weekly cannot
be said to be an issue in respect of an industrial dispute. The appellant is
entitled to transfer its business to whomsoever it likes and on whatsoever
terms it chooses to accept. Similarly, the appeIlant is entitled to transfer
its business from one place to another and the employees are not entitled to
raise an industrial dispute in respect of such a transfer. That being so, it is
urged, the first Part of issue No. 1 is outside the jurisdiction of the
Industrial Court as it doe& not fall within the definition of an industrial
dispute at all; and if the first part is outside the Act, the second part
cannot survive.
Thus presented, the argument is prima facie
attractive. But in appreciating the scope of the enquiry contemplated by issue
No 1, we cannot ignore the contentions raised by the respondents. It is clear
that the case of the respondents is that during the negotiations between the
appellant and the Union in the presence of the Acting Labour Minister and the
Commissioner of Labour, the appellant sought to insert a clause in the
agreement in respect of its proposal to shift the Andhra Prabha to Vijayawada
and that the respondents objected to it. Thereupon, the appellant's Chairman a
verbal assurance that the business of the appellant would be carried on at
Madras for 554 2-1/2 years which was the life of the agreement. Basing
themselves on this verbal assurance, the respondents contend that the said
assurance was one of the terms of the conditions of the respondents' service
and the transfer effected by the appellant contravenes and materially modifies
the said condition of service. It is in the light of this contention that the
scope of the enquiry contemplated issue No. 1 has to be judged. In this connection..
it may be relevant to refer to the fact that the appellants Director, Mr.
Phumbra, wrote to the respondents on the 20th April, 1959, inter alia, that
when arrangements are finalised at Vijayawada, the concerned workman and others
would be advised in writing to enable them to join at Vijayawada. Therefore,
the nature of the' dispute between the parties under issue No. 1 is based on
the verbal assurance alleged to have been given by the appellant's Chairman to
the respondents. We do not wish to express any opinion on the merits of this
controversy at all. Whether or not a verbal assurance was given as pleaded by
the respondents and if years, whether such an assurance would constitute a
condition of service, are questions which the Tribunal may have to try. But
since the dispute centers round this verbal assurance, it would be idle to
contend that issue No. 1 relates to the transfer of business which cannot be
the subject matter of an industrial dispute. It is in the light of the
contentions raised by the respondents that the limits of the issue are, in a
sense, determined and it would be within these limitations that the Tribunal
would have to try this issue. Therefore, we are not prepared to accept Mr. Sastri's
argument that issue No. 1 could not have been validly referred to the
Industrial Tribunal for its adjudication.
Then in regard to issue No. 2, the argument
is that this issue has, in fact, been determined by 555 the Government and
nothing is left to the Tribunal to consider or decide. It may be conceded that
the wording of the issue is inartistic and unfortunate. As it is worded, it no
doubt, prima facie gives an impression that the enquiry on this issue has to
proceed on the assumption that the conduct of the appellant amounts to a
lookout, and. this argument is somewhat strengthened by the ill-advised and
unfortunate order passed by the State Government under a. 10 (2). It is hardly
necessary to emphasise that since the jurisdiction of the Industrial Tribunal
in dealing with industrial disputes referred to it under section 10 is limited
by S.10 (4) to the points specifically mentioned in the reference and matters
incidental there to, the appropriate Government should frame the relevant
orders of reference carefully and the questions which are intended to be tried
by the Industrial Tribunal should be so worded as to leave no scope for
ambiguity or controversy. An order of reference hastily drawn or drawn in a
casual manner often gives rise to unnecessary disputes and thereby prolongs the
life of industrial adjudication which must always be avoided. Even so$ when the
question of this kind is raised before the Courts, the Courts must attempt to
construe the reference not too technically or in a pedantic manner, but fairly
and reasonably. Thus-construed, even the inelegant phraseology in framing the
issue cannot conceal the fact that in dealing with the issue, the main point
which the Tribunal will have to consider is whether the strike of the
respondents on the 27th of April, 1959 Was justified and whether the action of
the appellant which followed the said strike is either a lookout or amounts to
a closure. The respondents will contend that it is a lookout which is in the
nature of an act of a reprisal on the part of the appellant, whereas the
appellant will contend that it is not a lookout bat a closure genuine and
bonafide. Thus, 556 having regard to the content of the dispute covered by
issue No. 2, it would not be right to suggest that the reference precludes the
Tribunal from entertaining the appellant's plea that what it did on the 29th
April is in fact not a lookout but a closure. The fact that the relevant action
of the appellant is called a lookout does not mean that the Tribunal must hold
it to be a lookout. In this connection, it may be recalled that in several
cases where industrial disputes are referred for industrial adjudication in
respect of certain persons named as workmen, the employers raise the contention
that the specified persons are not their workmen and it has never been
suggested that merely because the said persons are described as workmen in the
reference, the employer is precluded from disputing their status or that the
Tribunal has no jurisdiction to try such an incidental dispute. Therefore, we
do not think that Mr. Sastri is right in contending that issue No.2 has been so
worded as to exclude the jurisdiction of the Tribunal to deal with the question
as to whether the appellant's impugned action amounts to a closure or not.
In the result, we hold that the grievance
made by the appellant against the decision of the Appeal Court in writ Appeal
No.73/1959 is not well-founded. In order to avoid any controversy between the
parties before the Industrial Tribunal as to the scope of the enquiry which the
said Tribunal would be justified in holding on the present reference, we would
like to state that in. trying issue No. 1, the Tribunal will deal with that
issue in the light of the respondents'-contention about the verbal assurance
given by the appellant's Chairman to them during the course of the previous
negotiations. In regard to the enquiry under issue No.2 the Tribunal will have
to consider whether 557 the strike was justified. It will also have to consider
whether the transfer effected by the appellant amounts to a closure or a
lookout and in dealing with this issue, it will take into, account all facts
which are relevant and material.
That leaves only one minor point to be
mentioned and it relates to the order passed by the State Government under
s.10(3) of the Act. We agree with the trial Court and the Court of Appeal that
the State Government was ill-advised to issue the said order. It may be that
the State Government was anxious to preserve industrial peace and so, it
proceeded to exercise its jurisdiction under s.10(3). But it is obvious that
the full implications of the order were not appreciated by the State Government
before it issued the said order. Indeed, the inappropriateness and the
impropriety of the said order gave rise to argument by the appellant that the
Government was acting malafide against it, and the State Government had to
offer an explanation in the form of an affidavit and by way of a statement made
by the Government Pleader at the Bar to meet this challenge.
If only the State Government had considered
the matter more carefully before issuing the said order, this complication
could have been easily avoided.
The result is, the two appeals fail and are
dismissed with costs. There will be one set of hearing fees in these appeals.
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