Case: Management of Express Newspapers (Private) Ltd Vs. The Workers &amp; Others

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. Sastris argument that issue No.1 could not have been validly referred to the Industrial Tribunal for its adjudication. 19. Then in regard to issue No.2, the argument is that this issue has, in fact, been determined by the Government and nothing is left to the Tribunal to consider or decide It may be conceded that the wording of the issue is not artistic 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 lockout, and this argument is somewhat strengthened by the ill-advised and unfortunate order passed by the State Government under S.10 (3).It is hardly necessary to emphasise that since the jurisdiction of the Industrial Tribunal in dealing with industrial disputes referred to it under S. 10 is limited by S.10(4) to the points specifically mentioned in the reference and matters incidental thereto, 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 April 27, 1959, was justified and whether the action of the appellant which followed the said strike is either a lock out or amounts to a closure. The respondents will contend that it is a lockout 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 lockout but a closure genuine and bona fide. Thus, 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 appellants plea that what it did on the 29th April is in fact not a lockout but a closure. The fact that the relevant action of the appellant is called a lockout does not mean that the Tribunal must hold it to be a lockout. 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 employees 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 appellants impugned action amounts to a closure or not. 20. 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 appellants 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 the strike was justified. It will also have to consider whether the transfer effected by the appellant amounts to a closure or a lockout and in dealing with this issue, it will take into account all facts which are relevant and material. 21. 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 an argument by the appellant that the Government was acting mala fide 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. The true legal position in regard to the jurisdiction of the High Court to entertain the appellants 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 lockout but is a closure bona fide 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 lockout, but the said action has adopted the disguise of a closure, and a dispute raised in respect of such an action it would be an industrial dispute which industrial adjudication is competent to deal withThere 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 enquiry11. 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 can be successfully challenged before the High Court by a petition for an appropriate writ, and the power of the High Court to issue an appropriate writ in that behalf cannot be questionedThis position is also not in dispute14. It seems to us difficult to accept Mr. Sastris 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 doubtThough 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 lockout. 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 lockout 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 appropriateNormally, 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 special Tribunals 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 before 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 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 facts should be tried by a High Court in a writ 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 be 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. Sastris argument that the Appeal Court was wrong in reversing the conclusion of the trial Judge in so far as the Trial Judge proceeded to deal with the question as to whether the action of the appellant was a closure or a lockout16. 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 April 29, 1959. In the course of their judgments, both the trial Court and the Court of Appeal have indicated their preference for one view or the other and for a 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 these observations18. 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 he 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 appellants Chairman gave a verbal assurance that the business of the appellant would be carried on at Madras for 2 1/2 years which was the life of the agreementWe 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 yes, 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. Sastris argument that issue No.1 could not have been validly referred to the Industrial Tribunal for its adjudicationAs 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 lockout, and this argument is somewhat strengthened by the ill-advised and unfortunate order passed by the State Government under S.10 (3).It is hardly necessary to emphasise that since the jurisdiction of the Industrial Tribunal in dealing with industrial disputes referred to it under S. 10 is limited by S.10(4) to the points specifically mentioned in the reference and matters incidental thereto, 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 April 27, 1959, was justified and whether the action of the appellant which followed the said strike is either a lock out or amounts to a closure. The respondents will contend that it is a lockout 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 lockout but a closure genuine and bona fide. Thus, 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 appellants plea that what it did on the 29th April is in fact not a lockout but a closure. The fact that the relevant action of the appellant is called a lockout does not mean that the Tribunal must hold it to be a lockout. 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 employees 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 appellants impugned action amounts to a closure or not20. 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 appellants 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 the strike was justified. It will also have to consider whether the transfer effected by the appellant amounts to a closure or a lockout and in dealing with this issue, it will take into account all facts which are relevant and material21. 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 an argument by the appellant that the Government was acting mala fide 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.