Full Judgment Text
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PETITIONER:
THE MANAGEMENT OF EXPRESS NEWSPAPERS LTD.
Vs.
RESPONDENT:
WORKERS & STAFF EMPLOYED UNDER IT AND OTHERS.
DATE OF JUDGMENT:
02/08/1962
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
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
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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.
542
JUDGMENT:
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
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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.
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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 dis-
puted 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 mach-
inery 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.
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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 objec-
tion 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
was 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
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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
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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
marely 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
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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 appe-
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Ilant 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 connec-
tion.. 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
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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
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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.
Appeals dismissed
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558