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TMI Blog1953 (2) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... s subject to the condition that an expert, who had been appointed to hold an inquiry into the affairs of the Mills, should complete the inquiry within 10 days and that if the finding of the expert would be that it would be uneconomical to run the Mills in the present conditions the Mills would be closed, or if the inquiry did not finish within 10 days' time the working of the Mills would again be stopped. On a request made by the petitioner the Government of Rajasthan secured the services of Mr. Dutta to inquire into the affairs of the Mills and to report how far the working of the mills was economical under the present conditions. Mr. Dutta submitted his report to the Government but the Government did not supply it to the petitioner. However, the petitioner thought that the result of the inquiry made by Mr. Dutta supported the view that under the present condition the working of the Mills could not be undertaken without heavy losses. As it is said it was absolutely impossible to work the Mills without incurring losses the petitioner was forced to close down the Mills again on 19-11-1952. Thereafter, it is said, the Mill labourers indulged in irresponsible and violent activiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal as alleged by the petitioner but denied any knowledge that the petitioner had closed the Mills on account of losses. It was said that virtually the petitioner had resorted to a lockout, even though the petitioner had in his notice to the labourers expressed that the closing down of the Mills was on account of losses. Similarly, the reply filed on behalf of the labourers of the Mills is that the petitioner had resorted to a lockout in order to force the labourers to accept lower wages and the closing down of the Mills was only a subterfuge to enable the petitioner to coerce the labour to accept adverse terms of employment. 5. The first question that has arisen in this case is whether the reference made by the Government to the Industrial Tribunal is 'ultra vires'. It is conceded by the learned Government Advocate that if the petitioner had closed down his Mills on account of losses the reference would suffer with the defect of being beyond the scope of the Industrial Disputes Act, because a reference under the Industrial Disputes Act can only be made when there is any industry in existence and in the case of the closing down of an industry there can be no industrial dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gree with the findings of Mr. Dutta, it was however admitted that according to Mr. Dutta the working of the Mills under the existing circumstances involved a loss of more than a lakh of rupees every month to the management. This fact has been made the foundation of the claim of the petitioner that the mills had been closed down on account of heavy losses. Until an inquiry is made by the Industrial Tribunal on this question nothing can be said one way or the other but it can be said that the report of Mr. Dutta does support the petitioner in his allegations. How far that report is correct, it would be for the Tribunal to decide. We would therefore leave this question for the Industrial Tribunal to determine and would not venture at this stage to decide the question whether the reference to the Industrial Tribunal in the present case is or is not within the scope of the Industrial Disputes Act. 8. The next question that has been urged on behalf of the petitioner is that the order of the Government to run the mills is illegal. The petitioner, it is urged, should not be forced to incur losses by running the mills. The fundamental rights of the petitioner under Articles 19(1)(g) and 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision on this question ourselves, leaving the question for the determination of the Industrial Tribunal. It is, however, evident from a perusal of the order of reference of the Government that no dispute other than the stopping of the mills, whether as a closure or as a lockout, has been referred to the Industrial Tribunal. The main issue which would come before the Industrial Tribunal would relate to the propriety of the action of the petitioner in stopping the functioning of the mills. Section 10(3), Industrial Disputes Act is as follows: "Where an industrial dispute has been referred to a Board or Tribunal under this section, the appropriate Government may by order prohibit the continuance of any strike or lockout in connection with such dispute which may be in existence on the date of the reference." 11. It is true that a lockout itself may be the subject-matter of a dispute which might be referred to an Industrial Tribunal under Section 10(1) or 10(2), Industrial Disputes Act. It is also clear that Section 10(3), Industrial Disputes Act leaves it within the discretion of the Government to prohibit the continuance of a strike or lockout in connection with a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, a possibility for the petitioner to suffer heavy losses if the order which has been made by the Government under Section 10(3), Industrial Disputes Act is allowed to stand. In other words, there is certainly much room for an apprehension to the petitioner that he might suffer heavy losses in the event of his being forced to work the mills. In view of Mr. Dutta's report the apprehension in this behalf of the petitioner cannot be termed to be a mere idea without any foundation. In such a case, therefore, the law did not contemplate that an order under Section 10(3), Industrial Disputes Act should be made. This is why the language requires that a strike or lockout in order that it might be prohibited should be in connection with some dispute and the dispute for purposes of Section 10(3) should be something different from the strike or lockout itself. Where the strike or lockout itself is the dispute the law did not contemplate that an order for its discontinuance should be made under Is. 10(3). 12. We have been referred in this connection to the observations of Kania C. J. in -- 'Sham- nugger Jute Factory Co., Ltd. (North) v. S. N. Moda', AIR 1949 FC 150 (B), whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case when a petitioner apprehends heavy losses he cannot be forced to work the mills which might entail losses to him. Under Article 31(1) of the Constitution of India no person can be deprived of his property save by authority of law. To force the petitioner to work the mills with the result that he would be made to suffer losses amounts to depriving him of property. In such a case the petitioner, it is apparent, apprehends that he shall have to incur losses every month and this cannot be anything different from depriving him of his property. The provisions of Section 10(3), Industrial Disputes Act, as we have already discussed, do not authorise the Government to make a prohibitory order in such circumstances. The purpose of the Industrial Disputes Act is to harmonise the relations between the employer and the employees and it is not contemplated by the Act that the employer or the employee should be deprived of their property. 16. The learned counsel of the petitioner has also invoked the provision of Article 19(1)(g) of the Constitution of India in his favour in asserting that it is open to him to close down the mills temporarily or permanently. He is at liberty to carry on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 19 of the Constitution of India, which are available only to the citizens of India. It can therefore be safely taken that corporations like natural persons can claim fundamental rights under Article 19 of the Constitution of India and they cannot be deprived of such rights on the grounds that they cannot be included within the definition of 'citizens'. The definition of 'citizen' is comprehensive and it cannot be assumed that a corporation is not a citizen. Certain doubts were expressed in this connection by Rajamannar C. J. in -- 'Meenakshi Mills Ltd., Madura v. State of Madras', AIR 1951 Mad 974 (E) but in -- AIR 1953 Mad 98' (C) the same Court on an application of a company came to the conclusion that its rights under Article 19(1)(g) had been infringed. In other words, the corporation was taken to be a citizen in the meaning of Article 19(1)(g) of the Constitution of India, 21. We are also referred in this connection to the decision of a Division Bench of the Punjab High Court in -- 'Jupiter General Insurance Co. Ltd. v. Rajagopalan' (F) in which it has been held that a corporation is not a citizen. The decision proceeds on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Secretary of the Interior has acted wholly without authority of law. Since -- 'Marbury v. Madison' (1803) 1 Cra 137 (H), it has been held that there is a distinction between those acts which require the exercise of discretion or judgment and those which are purely ministerial, or are undertaken entirely without authority, which may become the subject of review in the Courts. The subject was under consideration in -- 'Noble v. Union River Logging R. Co.' (1893) 147 U. S. 164 (I), and Brown J. delivering the opinion of the Court, cites many of the previous cases of this Court, and, speaking for the Court says: 'We have no doubt the principle of these decisions applies to a case wherein it is contended that the act of the head of a department, under any view that could be taken of the facts, that were laid before him, was 'ultra vires', and beyond the scope of his authority. If he has no-power at all to do the act complained of, he is as much subject to an injunction as he would be to a 'mandamus' if he refused to do an act which the law plainly required him to do. As observed by Bradley J. in -- 'Board of Liquidation v. McComb' (1876) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal. In the present case, the order of the Government under Section 10(3), Industrial Disputes Act is not within the scope of the provisions of law and is not warranted under the law. In such a case where it infringes the fundamental rights of the petitioner it is open to this Court to grant relief by issuing an appropriate writ or direction. The scope of Article 226 of the Constitution of India is wider than the scope of prerogative writs under the English Law. In cases where fundamental rights are infringed, it is the duty of this Court to safeguard them. 27. We have held that the order of the Government under Section 10(3), Industrial Disputes Act is not covered by the provisions of that section. But for a moment if it is assumed for the sake of argument that the Government was authorised to make such an order within the meaning of Section 10(3), the order in the present case would nevertheless amount to an unreasonable infringement of the fundamental rights of the petitioner under Article 19(1)(g) of the Constitution of India, because the business of the petitioner is not a public utility concern and 'prima facie' the petitioner reasonably apprehends a loss of more t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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