TMI Blog1962 (8) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... anagement 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), 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 learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial 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 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, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... 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