# THE MANAGEMENT OF NEWSPAPER8 EXPRESS LTD v. WORKERS & STAFF EMPLOY.GD UNDER IT AND OTHERS

- **Citation:** [1963] 3 S.C.R. 540
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** P. B. Gajendragadkar, K. C. Das Gupta, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-management-of-newspaper8-express-ltd-v-workers-staff-employ-gd-under-it-and-2643
- **Pages:** 18

## Headnote

Industrial Dispute-Validity of reference-Lockout or
cl?BUre-Whether industrial dispute-Determination of jurisdictional fact by Trib1tnal -High Court's power to issue writ
-Order of reference-Fair and reasonable construction--Cosn.
titution of India. Art.
226-Industrial Dispute1 Act, 1947
(14 a/1947), ss. 10 (1) (d), 10 (3), (4).
,
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 •truck 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 ( l) (d) of ·the
Industrial Disputes Act. The other order which was under
•.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 petition• were heard
together by a Single Judge who held that since the order under
'· 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
di•pute 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
P!v!sion Bench upheld the decision if the Single Bench ~ncj
, .
-
,. .
3 S.".R.
SUPREME COURT REPORTS
dismissed the appeal. With regard to the other appeal it help
that ev.en though the High Court had .jurisdiction to entertain
the writ petition since the deterniination 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 th,is 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 anct
business of the appellant was on the face of it bad since the
appellant was entitled to make such transfer and the respond·
ents;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 Govrnment 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
jurisdic~ional
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 juris·
dictional facts should be circumvented· and the decision of such
a preliminary issue brought before the H

## Text

. JB9JI
•
540
SUPREME COURTR EPORTS [1963]
THE
MANAGEMENT
OF
NEWSPAPER8
EXPRESS
LTD.
v.
WORKERS
&
STAFF
EMPLOY.GD
UNDER IT AND OTHERS .
(P. B. GAJENDRAGADKAR, K. C. DAS GUPTA and
J. R. MuDHOLKAR, JJ.)
Industrial Dispute-Validity of reference-Lockout or
cl?BUre-Whether industrial dispute-Determination of jurisdictional fact by Trib1tnal -High Court's power to issue writ
-Order of reference-Fair and reasonable construction--Cosn.
titution of India. Art.
226-Industrial Dispute1 Act, 1947
(14 a/1947), ss. 10 (1) (d), 10 (3), (4).
,
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 •truck 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 ( l) (d) of ·the
Industrial Disputes Act. The other order which was under
•.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 petition• were heard
together by a Single Judge who held that since the order under
'· 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
di•pute 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
P!v!sion Bench upheld the decision if the Single Bench ~ncj
, .
-
,. .
3 S.".R.
SUPREME COURT REPORTS
dismissed the appeal. With regard to the other appeal it help
that ev.en though the High Court had .jurisdiction to entertain
the writ petition since the deterniination 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 th,is 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 anct
business of the appellant was on the face of it bad since the
appellant was entitled to make such transfer and the respond·
ents;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 Govrnment 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
jurisdic~ional
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 juris·
dictional 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 cace 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
as to ;exclude the jurisdiction of the Tribunal to decide the
question whether the appellant's action amounted to a closure
or not,
111.t -
Jlanagemenl •f
1!J lt/J•Nf 'N1wrJJSfJlrl
·lid.
.
v.
W M'kws ani S'4J'
M~ftagemU.1 oj
Expriss .N ewJpajJetl
Lid. ...
Work1rs and Sl':'if
542
SUPREME COURT REPOR'ts [19631
CIVIL APPELLATE Ju:RISDIOTION: Civil Appeals
Nos. 574 and 575 of 1961.
Appeals by special leave from the judgment
and order dated October 13, l 959, of the Madras
High Court in writ Appeals Nos.73 and 85 of 1959.
A. V. Vi8wanatha Sastri, R. Ganapathy Iyer and
G. Gopa/,akrishnan, for the appellants.
M. K. Ramamurthy, R. K. Garg and T. S.
Vankataraman, for respondents Nos. 1 and 2.
A- Ranganatham Ohetty and A. V. Rangam, for
respondent No. 4.
1962. August 2, The Jud3ment of the Court
wa 0 delivered by
GAJENDRAGADKAR, J.-On the
30th
of
April, 1959, the Madras Governmtmt referred to the
Industrial Tribunal, Madras, for its adjudication
two industrial issues which had arisen bet ;veen the
appellent The Management of Express Ltd. and the
respondents, its workmen. These two items of dispute
were thus specified in the Order of Reference:-
1. Whether the transfer of the publication
of Andhra Prabha 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 Expr.,~s Newspapers
Private Ltd. are Justified and to what
relief the workers and the working
Journalists a.re entitled?
This reference was made under section 10 (1) (d)
of the Industrial Disputes Aot, 1947, (XIV of 1947)
(hereinafter called the Act).
..
. '
..
,; ..
3 S.C.R.
SUPREME COURT REPoR.TS
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 lockout.
Against the latter Order, the appellant filed a
writ petition in the Madras High Court (No. 443 of
1959) on lst ofMay, 1U59, 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 Goverenment Order issued under s. IO (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 of 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 regarif to writ petition No. 450 of 1959, the
learned Judge held that he had jurisdiction to entti·
rtain 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 appellent had done did not
amount to a lookout but a closure and so, the substantial part of the dispute between the parties did
not a.mount 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
IHI
·-
Jl.lana1e1116n# of
Expms Newapapsr;
Lid.
,
v.
W 011'1r1 and Staff
-
Managemenhof
Eltprsss ,Newrpopera
Lid. ..
W-0t.«1rs an<t-S tajf ·
544
SUPREME COURT REPORTS (1963)
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 respqndent1<
by preferring two appeals before a Division Bench o
the Madras High Court.
The order passed on
W.P. No. 443/1959 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. Thi
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 poin
o( controversy between the parties as to the valj.
dity of the reference itself, the Appeal Court tool
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 fa.ct 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 rribunal, 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 pa.seed 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 fa.ct which the Industrial Tribunalma.y
have to try and the limits of its jurisdiction. In
the result, the writ apple No.73/1959 suooeeded
..
- )-,
-
3 s.C.R.
Su.PR~Ml!l OOUR.T REPORTS
545
whereas writ appeal No.85/1959 failed. It is this
decision of the Court of Appeal that is challenged
before us by Mr. Viewanatha 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 ·is·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 Sta.ndard (on Sundays),
Dinamani, Dinamani Kadir, Andhra Prabha, Andhra
Prabha Illustrated Weekly and screen. These papers
were being printed and ptibl~hed 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 Journaliste (Conditions
of Serv:ice and Miscellaneous Proviaions) Act,1955.
It appears, on the same day, the appellant's Boa.rd
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. Jt is this action of the appella 'lt which
as led to the pr esent dispute.
1962
Managem~nl of
Jilxprus N.wspapers
'Ltd.
v.
Workers an.t Slaff
Goj8ndraga.tllar _J.
1982
Manag1mml oj
liJxpr1ss N ewspaperg
Ltd. ....
Workera and Sta.ff
546
SOPREM'.E COUR'l' REPOR'l'S (I963j
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 apellant and its employees a dispute arose on
certain points including bonus in March, 1957.
This dispute was referred for industiral adjudication
which ended in an award in November, 1957. Thie
award was challenged by the appollant by an appeal
before this Court and we were told that the appell·
ant's appeal had substantially succeeded. That is
how the dispute of 1957 ultimately ended.
In March, 1958, the appellant notified its
intention to retrench 69 workmen and that led to
an in<lustrial dispute which was referred for induB·
tl'ial adjudicat.ion.
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, withdrnwn 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 intiJ"'ated 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 settle·
ment was reached between the parties which was
mbodied in a memora:i.dum drawn up on the 6th
of November, 1958 under s.12 (3) of the Act. This
settlement was to operate for 2! years. The
respondents' case is that Mr. R.N. Goenka, the
appellant's Chairman, agreed in the presence of
the Minster, Mr. Bhaktavatsalam, and the Labour
Commissioner, Mr. Balasundaram, th.at the paper
'Andhra Prabha' would not he shifted for publication to Vijayawada during the period of the settlement, and that the workmen would be continued
,~
..
·-
. :. .
•
3 s.c.R.
547
to· be employed as before &t Madras. The respondents contend that this assurance was given verbally but had not been included in the terms of
memoraudum. Broadly stated, the
resp~ndents'
case is that the transfer purported to have been
effected by the appellant on the 29th April, 1959,
ia in contravention of this verbal assurance and it
is urged that the verbal assurance given by the
appel1ant'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 apellant suspended them, but at the
. instance of the Conciliation Officer, they were taken
back upon their tendering an apology and the
delivery boys then resumed duty. In March and
April 195U, the· Madras Union of Journalists
bega~ to protest to the Government against what
it apprehended was the proposed move of the
appellant to transfer
the publication
of the
Andhra Pra.bha
to
Vijayawada in contravention of the
verbal assurance
given to the
respondents by the appellant's Chairman .. These
protests., were followed by a joint meetiri.g 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 proprie·
tory interest in the two periodicals to an alleged
•benami' concern; this resolution characterised the
transfer as mala fide and illegal.
This resolution
was followed by an intimation of strike on the 24th
April, 1959, a.a tb.e appellant had intimated to the
respondents by its letter of the 23rd April, 1959,
the faots about, the impugned transfer.
The appellant plainly informed the respondents that the
1962
Mana1emant of
E Xff'.S 1N ewspape"
' Lid.
v.
Workers and Sta.If
Gajmdra&adkar J.
1901
M anag1t1i1nl of
Exty1s• N1U1SfJaperB
• Ltd.
.... ,,.
W orklr1 and Sta.ff
~GaJ1nd1'azdJ/car J.
548
SUPREME COURT REPOR1'S (1961lj
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 ~7th April, 1959, This strike was followed
on t.he 29th April, 1959, by the announcement !!lade
by the appellant about the closure of its business.
'..o. hat, in brief, is the background of the present dispute b'tween 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 proposad to be taken before the Industrial
Tribunal, is not·ir1 dispute. If the action taken by
the appellant is not a lockout but is a closure, bonafide and genuine, the dispute which the respondents
may raise in respect of such a closure i11 not an ·industrial dispute at all.
On the other hand, if, in fact .
and in substa11ce, it is a lockout, 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 resvect 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
'
.
, ...
•
·'
3 S.C.R.
SUPREME COURT REPORTS
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 commence·
ment the Industrial Tribunal will have to examine
as a preliminary i~sue the question as to whether
the disputA referred to it is an industrial dispute or
not, and the decision of this question woul<l inevitably depend upon the vfow which the Industrial
Tribunal may take as to whether the action taken
by tJte appellant is "" closure or a lockout. The finding which the Industrial Tribunal may record on
this preliminary issue will decide whether it has
jurisdiction to dertl with the merits of the disput or
not. If the finding is that the action i)f the appe·
Hant 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 t.he other hand,
the findinμis that the action of the appellant
amounts to a lockout which has been disguised as a
ofosure, 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 di11pute,
This position is also
not in dispute.
The Court of Appeal has held that having
regard to the somewhat complex nature ofthe 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 respeet• · of that issue.
The Court
of Appeal has'
elaborately set out in its judgment the pros and
c:io.qe•of the dispute and it has indioated so~e·of
19111
Manarwnmtof
ExpreSI Newapap-,,s
Lid.
v.
Worket1t a11d·Slalf
<1ajtndiagadfcar J.
I
Management l)j
bXpress N •w1papera
Lid.
v.
~Yo rke1B nnd Staff
Gajendragadkar J,
•
550
SUPREME COURT REPOR'rs (1963J
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 wat 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 don bt. The only question
ofi 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 esta.blished 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
theorectical 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 closes the business itself; and
so, the closure i~dicates t~e f:lnal and irrevocable
. '
•
...
)
..
....
~ S.C.R.
SUPREME COURT REPORTS
551
termination of the business itsPlf.
Lockout, 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
Lockout is often used by the employer as a weapon
in his armoury lo com pell 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 distinct.ion
between t.he 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 pro·
ved 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 em·
ployees allege is a lockout, the enquiry which foll·
ows 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 i~ indeed not, disputed.
But would it be proper for the High Court fo adopt
such a course unless the ends of justice seem to
~ake it necessary to do so ?· Normally, the quest10ns of fact, though they may be jurisdictional facts
t~e decis~on of which depends upon the apprecia·
twn of ey-1deμoe1 should be left to ~e t.ried by the
196?.
Management of
Express Newspaper•
Ltd.
v.
w,rkers and Stajf ·
Gajendrog 1dkar J.
19611'
Management of
E*pf'1as New1papers
Ltd.
v.
War/c,rs and Staff
-
Gajen~riqadkar J.
552
SUPREME GeURT'REPORTS (1963]
Special Tribunals constituted for that purpose. If
and after t.he 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 juris·
diction of the Special Tribunal to deallwith these
jurisdictional facts should be circumvented and the
demsion 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 eaoh 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 aR to whether the 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 Appea\'
I-<'
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a s.c.R.
SUPREME 'COURT RlnPORTS
553 1
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
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 observations.
Mr. Saatri then contends·that on the face of it,
the : reference is bad. His argument is · that issue
No. I 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 tu transfer
its busineas to whomsoever it likes and on whatsoo.
ever terms.it chooses to accept. Similarly, the appellant 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. I is outside the jurisdiction of the Industial
Court as it does not fall within the definition of an
industrial dispute at all; and if the first part is outside,the Act, the second part qannot survive.
Thus presented, the argument is prima· facie
attractive. But in appreciating the scope of the enquiry contemplated by issue No. I, 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.I in .respect of its proposal to shift the Andhra ·
Prabha to Vijayawada and that the respondents
• . objected to it. Thereupon, the appellant's ChairDiail•gave 'a verbal assurance that the business of
the a.ppelhmt rwould be carried on at Madras for
1982''
ManaUe;n~'nt of.
Express N ew5papir1 ·
Ltd.·
v.
W arkers anil Stoff
Gajtnd•agadkar J.
Managtment of
Expresa Newspapers
Ltd. ..
W rrrkers and Slaff
Gnjtnd.rogad.kar J.
554
SUPREME COURT REPOR 'l S [l H':l)
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 appe.
Hant contravenes and materially modifies the said
condition of service. It i~ in the light of this contention that the scope of the enquiry contemplated
by issue No. 1 has to be judged. In this connection, it may be relevant to refer to the fact that the
appellant's 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. l 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
contrqversy at all. Whether or not a verbal assurance was given as pleaded by the rt'spondents
and if yes, whethar such an assurance would con·
stitute a condition of service, are questions which
the Tribunal may have to try. But since the dispute
centres
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 & sense, determined and it would be within these limitations that
the Tribunal would have to try this issue. Therefore, we a1·e 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 faot, been determined by ,
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'
' .
i
r·
3 S.C.R.
SUPREME COURT REPORTS
555
,
the Government and nothing is left to the Tribunal to consider or decide. It may be qonceded 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 lockout, and this argument is somewhat strengthened by the ill-advised
and unfortunate order passed by the State Govern·
ment under s. 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.l 0 ( 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
sho~ld be so worded as to leave no scope for embig·
· uity or cnntroversy. 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 technicaJJy or in a pedantic manner, but f~irly and reasonably. Thus construed, even the inelegent phraseology in framing the issue cannot conceal the fact
that in dealing with the issue, tlie main point which
the Tribunal will have to consider is whether the
strike of the respondentfj on the 27th of April, 1959
was justified and whether the action of the appellant which followed the aaid strike is either a lockout or amounts to a closure. The respondents will
contend that it is a lookout which is in the nature
of an aot of a represal on the part of the appellant,
whereas the appellant will contend that it is not
a lockout but a closure genuine and bonafide. Thus,
1968
Mana1•mtnl of
Expre.s Newspa/J1r,t
Ltd.
"·
WorkerJ and Staff
Gajendragadkar ,r.
..
1962
Manag1m111t of
Express .Newspapers
Ltd.
v.
Workers ond Staff
--
"
.
Gaj1ndragadkar J,
556
SUPREME COURT REPORTS [1963j
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 lockout 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 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 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 preoluded 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 cotroversy
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.l, 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.:& the Tribunal will have to consider whether
\
...
j
-
3 S.C.R.
SUPREME COURT REPORTS
557
the strike wa11 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
whioh are relevant and material.
1962
M anagtm1nl of
Express Newspapers
Ltd.
v.
Workers and Sia.If
--·
That leaves only one minor point to be menGaj,ndragadkat J.
tioned 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 au 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 sta.tement made by the Government Pleader at the Bar
to meet. this challenge. If only the State Government
had
considered
the
~atter
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
---