The Management Of Express Newspapers... vs Workers and Staff Employed Under It And...

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 574 and 575 of 1961

Decision Date: 2 August, 1962

Coram: P.B. Gajendragadkar, S.K. Das, J.R. Mudholkar

In this matter the parties were styled as The Management of Express Newspapers Ltd. as petitioner and the workers and staff employed under it, together with others, as respondents. The judgment was delivered on 2 August 1962 by a Bench of the Supreme Court of India comprising Justice P. B. Gajendragadkar, Justice S. K. Das and Justice J. R. Mudholkar. The case is reported in 1963 AIR 569 and 1963 SCR (3) 540, with subsequent citations including D 1967 SC 469, RF 1967 SC 1869, R 1968 SC 1002, R 1969 SC 90, R 1970 SC 1960, RF 1978 SC 1428, RF 1979 SC 1356. The issues involved the validity of a reference under the Industrial Disputes Act, 1947, the distinction between a lockout and a closure, whether an industrial dispute existed, the power of a Tribunal to determine jurisdictional facts, the High Court’s authority to issue a writ, the fairness of the reference order, and the application of Article 226 of the Constitution of India. The relevant statutory provisions were sections 10(1)(d), 10(3) and 10(4) of the Industrial Disputes Act, 1947 (14 of 1947). The headnote records that the petitioner was a private limited company engaged in printing and publishing newspapers and periodicals. In 1959 the petitioner gave notice of closing its various publications at Madras. On the same day its Board of Directors resolved to sell printing machinery and equipment to another private limited company, and the following day it placed an advertisement in a local newspaper stating that its premises were “To let.” Shortly thereafter the respondents went on strike. The Government responded by issuing two orders: one order referred the dispute to an Industrial Tribunal under section 10(1)(d) of the Act, and a second order, issued under section 10(3) of the Act, prohibited the continuation of the strike and any lockout in the petitioner’s concern. The petitioner challenged both orders by filing two writ petitions before a Single Judge. The Single Judge held that the order under section 10(3) was merely administrative, and therefore not subject to quashing by the Court; however, because the order was not beyond jurisdiction, the petitioner could disregard it. Regarding the writ petition concerning the reference to the Tribunal, the Judge pronounced that the High Court possessed jurisdiction to entertain the petition even at an interlocutory stage, and on the merits concluded that the petitioner’s action constituted a closure rather than a lockout, and that the dispute did not qualify as an industrial dispute. The respondents then filed two appeals to the Division Bench challenging the Government’s order under section 10(3). The Division Bench affirmed the Single Judge’s decision and dismissed the appeal relating to that order. Concerning the other appeal, the Division Bench observed that although the High Court had jurisdiction to entertain the writ petition, the question of whether the reference was valid required factual determination, which necessitated full investigation and trial by the Tribunal.

The Court observed that the question of whether the reference was valid involved many complicated factual issues and therefore the matter had to be fully investigated and tried initially by the Industrial Tribunal. The appellant then appealed to this Court. The principal contention raised in the appeal was that the appellant’s action constituted a closure rather than a lockout, and consequently no industrial dispute existed; on that basis the reference was held to be invalid and the Tribunal was deemed to lack jurisdiction to undertake the proposed enquiry. The appellant’s second contention concerned Issue No 1 in the reference, which dealt with the transfer of the appellant’s publication and business. It was argued that, on its face, the transfer was permissible because the appellant was entitled to make such a transfer and the respondents had no right to raise an industrial dispute in respect of it. The third contention submitted that the wording of Issue No 2 indicated that the Government had already determined the question raised by that issue, leaving nothing for the Tribunal to decide. The Court held that if the Industrial Tribunal proceeds to assume jurisdiction over a matter that is not an industrial dispute, that assumption may be successfully challenged before the High Court by a petition for an appropriate writ. The finding on the preliminary issue of whether a party’s action amounts to a lockout or a closure is a finding on a jurisdictional fact. Only when the action is found to be a lockout does the Tribunal acquire jurisdiction to consider the merits of the dispute. As a general rule it is not proper or appropriate to circumvent the initial jurisdiction of a special tribunal over jurisdictional facts by bringing the decision of such a preliminary issue directly before the High Court under its writ jurisdiction. In the present case, it would be idle to contend that Issue No 1, relating to the transfer of business, could not be the subject matter of an industrial dispute. Courts should interpret an order of reference fairly and reasonably rather than in a strictly technical or pedantic manner. When construed in this way and having regard to the content of the dispute covered by Issue No 2, the wording of that issue does not exclude the Tribunal’s jurisdiction to decide whether the appellant’s action amounted to a closure.

The judgment was filed under civil appellate jurisdiction as Civil Appeals Nos. 574 and 575 of 1961, filed by special leave against the judgment and order dated 13 October 1959 of the Madras High Court in writ Appeals Nos. 73 and 85 of 1959. Counsel for the appellants were A. V. Viswanatha Sastri, R. Ganapathy Iyer and G. Gopalakrishnan. Counsel for respondents 1 and 2 were M. K. Ramamurthy, B. K. Garg and T. S. Vankataraman, while counsel for respondent 4 were A. Ranganathan Chetty and A. V. Rangam. The judgment was dated 2 August 1962 and delivered by Justice Gajendragadkar. The Court noted that on 30 April 1959 the Madras Government had referred the matter to the Industrial Tribunal, Madras.

On 30 April 1959 the Madras Government referred two industrial matters for adjudication that had arisen between the appellant, the Management of Express Ltd., and its workmen, who were the respondents. The Order of Reference set out two specific questions: first, whether the transfer of the publication of Andhra Pradesh and Andhra Prabha Illustrated Weekly to Andhra Prabha Private Ltd., located in Vijayawada, was justified and what relief, if any, the workers and working journalists were entitled to; second, whether the strike undertaken by the workers and working journalists beginning on 27 April 1959, together with the consequent “lookout” declared by the management of Express Newspapers Private Ltd., was justified and what relief the workers and working journalists could claim. This reference was made under section 10(1)(d) of the Industrial Disputes Act, 1947.

On the very same day the Government of Madras issued an additional order under section 10(3) of the Act, prohibiting the continuation of the strike and the alleged lookout in the concern of the appellant. The Government justified this order on the ground that it was expedient and necessary to prevent the further continuation of the strike and the lookout. In response to that order, the appellant filed writ petition No. 443 of 1959 in the Madras High Court in early May 1959, and on 5 May 1959 it filed a second writ petition, No. 450 of 1959, challenging the order that had referred the dispute to the Industrial Tribunal for adjudication. Both petitions were heard together by Justice Bala Krishna Ayyar.

Justice Ayyar observed that the order issued under section 10(3) constituted an administrative order and questioned whether the court possessed jurisdiction to quash it in its present form. Nevertheless, he concluded that the Government lacked jurisdiction to issue the order and therefore the appellant was entitled to disregard it. He recorded that this clarification would serve the ends of justice and that was the sole relief he granted in writ petition No. 443 of 1959.

Regarding writ petition No. 450 of 1959, the judge held that he possessed jurisdiction to entertain the petition even at an interlocutory stage and consequently dismissed the preliminary objection raised by the respondents. On the merits, he determined that the appellant’s action did not constitute a “lookout” but amounted to a closure, and therefore the substantive dispute between the parties did not fall within the definition of an industrial dispute. Accordingly, he concluded that only the latter portions of both questions could be examined by the Tribunal. As a result, the appellant’s petition was partially allowed and the Tribunal was directed to consider solely the second part of the two questions framed by the reference.

The respondents challenged the reference that had been made by filing two separate appeals before a Division Bench of the Madras High Court. The order that had been issued in writ petition number 443 of 1959 gave rise to writ appeal number 85 of 1959, while the order issued in writ petition number 450 of 1959 gave rise to writ appeal number 73 of 1959. The appellate Court agreed with the trial judge that the order issued by the Government pursuant to section 10(3) of the Act was ill‑advised and was made without jurisdiction; consequently the appellant could disregard that order without fear of legal consequence. Concerning the principal dispute between the parties – namely, whether the reference itself was valid – the Appeal Court held that the matters that needed to be decided in response to the appellant’s claim of invalidity were complex questions of fact. The Court observed that such questions should be examined fully and tried initially by the Industrial Tribunal rather than by a higher court. In other words, although the High Court possessed jurisdiction to entertain an application for a writ of prohibition at the early stage of proceedings before a Special Tribunal, it would be improper to issue such a writ unless the disputed factual issues were first tried by the Special Tribunal. Accordingly, the order of the trial judge was altered, and the matters that had been referred to the Industrial Tribunal for adjudication were sent back to that Tribunal for determination in accordance with law. While making this order, the Appeal Court also identified the nature of the dispute, the factual questions that the Industrial Tribunal might need to resolve, and the limits of its jurisdiction. As a result, writ appeal number 73 of 1959 was allowed, whereas writ appeal number 85 of 1959 was dismissed. The appellant now challenges this decision of the Court of Appeal before the Supreme Court, through counsel representing him. Before the Supreme Court examines the merits of the appeal, it is essential to outline briefly the material facts that gave rise to the present controversy. The appellant is a private limited liability company incorporated under the Companies Act, engaged in the printing and publishing of newspapers and periodicals, including the Indian Express, Sunday Standard (published on Sundays), Dinamani, Dinamani Kadir, Andhra Prabha, Andhra Prabha Illustrated Weekly, and Screen. These publications were printed and published from Madras up to 27 April 1959. On 29 April 1959, the appellant gave notice of the closure of its business with respect to all its publications at Madras. The notice indicated that the staff and workmen would receive their wages, one month’s salary in lieu of notice, and compensation as prescribed in section 25(f) and section 25(fff) of the Act. It was also stated that

It was stated that journalists would receive wages and compensation comparable to those promised to other staff, and that the same amounts would be provided under the Working Journalist (Conditions of Service and Miscellaneous Provisions) Act, 1955. On the very same day, the Board of Directors of the appellant resolved to sell certain printing machinery and equipment to Andhra Prabha (Private) Limited for a sum of five lakh twenty‑five thousand rupees. In consequence, an advertisement was placed in the newspaper The Hindu on 30 April 1959, appearing in the “To‑Let” column and offering for lease the office accommodation and premises previously occupied by Express Newspapers Private Limited. This action of the appellant gave rise to the present dispute. For context, a dispute had earlier arisen between the appellant and its employees concerning the payment of bonus in March 1957. That disagreement was referred to industrial adjudication, which culminated in an award issued in November 1957. The appellant challenged that award by filing an appeal before this Court, and the appeal was reported to have been substantially successful, thereby bringing the 1957 controversy to an end. In March 1958 the appellant gave notice of its intention to retrench sixty‑nine workmen, which triggered a new industrial dispute that was also referred for adjudication. The appellant raised a preliminary objection on the ground of the reference’s incompetence and consequently initiated proceedings in the Madras High Court under writ petition number 810 of 1958. That objection was later withdrawn on 5 December 1958. On 12 October 1958 the union representing the respondents lodged certain complaints with the State Government; the Home Minister at that time attempted to intervene but his effort did not succeed. Soon after, the appellant announced its intention to cease operations of its publications in Madras and gave notice to its workmen. The Home Minister intervened a second time, and this intervention proved effective. As a result of the ministerial action, the parties reached a settlement that was recorded in a memorandum dated 6 November 1958 under section 12(3) of the Industrial Disputes Act. The settlement was intended to remain in force for two and a half years.

The respondents contend that Mr R. N. Goenka, who was the chairman of the appellant, gave a verbal assurance, in the presence of the Minister, Mr. Bhaktavatsalam, and the Labour Commissioner, Mr. Balasundaram, that the newspaper Andhra Prabha would not be transferred for publication to Vijayawada during the period covered by the settlement, and that the workmen would continue to be employed in Madras on the same terms as before. According to the respondents, this verbal assurance was not incorporated into the written terms of the memorandum, but nevertheless formed part of the employment conditions. They argue that the transfer effected by the appellant on 29 April 1959, which involved moving the publication of Andhra Prabha away from Madras, directly contravened the verbal assurance. The respondents maintain that the chairman’s verbal promise became a term of their employment and thus a condition of their service, and that the disputed transfer substantially altered that condition of service.

In March 1959, approximately sixty part‑time delivery boys demanded a raise in their wages. When the appellant refused to meet their demand, the delivery boys went on strike. The appellant responded by suspending the striking workers, but the Conciliation Officer intervened, and the delivery boys were reinstated after they offered an apology and resumed their duties. During March and April 1959, the Madras Union of Journalists began protesting to the Government, asserting that the appellant intended to shift the publication of the newspaper Andhra Prabha to Vijayawada, which they claimed would violate a verbal assurance allegedly given by the appellant’s Chairman to the respondents. Following these protests, a joint meeting was held involving the General Body of Express Newspapers (Private Ltd.), the Employees’ Union, and the Madras Union of Journalists. At that meeting a resolution was passed condemning the transfer of the proprietary interest in the two periodicals to an alleged “benami” concern; the resolution described the transfer as mala fide and illegal. Subsequent to the resolution, a notice of strike was issued on 24 April 1959. On 23 April 1959, the appellant had sent a letter to the respondents informing them of the impending transfer. In that letter the appellant plainly stated that a new concern at Vijayawada would assume responsibility for the required workers and that the decision to transfer was final and could not be altered or revoked. After receiving this communication, the respondents went on strike on 27 April 1959. Two days later, on 29 April 1959, the appellant announced the closure of its business. In brief, these events constitute the factual backdrop of the present dispute between the parties. The Court observed that the question of whether the High Court has jurisdiction to entertain the appellant’s petition at the initial stage of proceedings that are proposed to be before the Industrial Tribunal is not contested. The Court explained that if the appellant’s action constitutes a genuine and bona‑fide closure, then any dispute raised by the respondents concerning that closure does not qualify as an industrial dispute. Conversely, if in substance the action is a “lookout” that has been disguised as a closure, then a dispute arising from such an action would be an industrial dispute, which falls within the jurisdiction of industrial adjudication. The appellant maintained that its action was a true closure and therefore the dispute could not validly be referred to an Industrial Tribunal. The Court affirmed that, as a matter of law, the appellant is entitled to approach the High Court at the earliest stage and seek a declaration that the matter is not an industrial dispute, thereby removing the Industrial Tribunal’s jurisdiction to conduct the proposed enquiry. The Court also noted that the proceedings before the Industrial Tribunal are quasi‑judicial in nature.

In such cases, a writ of certiorari may be issued where appropriate. If the Industrial Tribunal assumes jurisdiction over a dispute that is not an industrial dispute, that assumption can be successfully challenged before the High Court by filing a petition for an appropriate writ, and the High Court’s authority to issue such a writ cannot be questioned. It is also true that even when the Industrial Tribunal proceeds to hear the dispute, at the very outset it must examine as a preliminary question whether the matter referred to it qualifies as an industrial dispute. The answer to that preliminary question will inevitably depend on the Tribunal’s view of whether the employer’s action constitutes a closure or a lockout. The Tribunal’s finding on this preliminary issue will determine whether it possesses jurisdiction to consider the merits of the dispute. If the Tribunal concludes that the employer’s action amounts to a closure, the proceedings before the Tribunal will come to an end as to the main dispute. Conversely, if the Tribunal finds that the action amounts to a lockout that has been disguised as a closure, the Tribunal will be entitled to proceed with the reference, because its finding on the preliminary issue is a finding on a jurisdiction‑defining fact; only when that fact is found against the employer does the Tribunal acquire jurisdiction to adjudicate the merits. This principle is not contested. The Court of Appeal has held that, given the somewhat complex nature of the facts that must be determined in deciding the preliminary issue, it is appropriate for the specially appointed Industrial Tribunal to first conduct an enquiry on that issue. The Court of Appeal, in its judgment, set out in detail the arguments for and against the respective positions and identified several factual premises on which the rival contentions rest. However, the Court of Appeal thought that because of the nature of the enquiry required to resolve the preliminary issue, it would be inappropriate for the High Court to determine the relevant facts solely on affidavits. A more suitable course, in the Court’s view, would be to let the Industrial Tribunal determine the material facts at the first stage. That reasoning explains why the Appeal Court declined to affirm the trial‑court decision in W. P. No. 450/1959. The narrow issue before us in this appeal is whether that view is erroneous in law. The Court finds it difficult to accept Mr. Sastri’s

In this case the Court considered the contention that the Appeal Court had erred in holding that an inquiry into a complex factual question could be conducted within writ proceedings. The Court noted that the legal position concerning the High Court’s jurisdiction was clear and undisputed. The only point of disagreement between the trial Court and the Appeal Court concerned whether it was appropriate for a High Court to conduct an elaborate fact‑finding inquiry, rather than referring the matter to a specialized industrial tribunal. The Court observed that industrial tribunals are well acquainted with the type of dispute presented by the preliminary issue in the present writ proceedings, as they have been specifically created to resolve industrial disputes in various locations. This fact formed one relevant consideration. A second, equally important, consideration was that a question of such complexity could not be satisfactorily resolved solely on the basis of affidavits. The Court explained that the legal distinction between a closure and a lockout was well established. In a closure the employer not only shuts the premises but also terminates the business itself, indicating a final and irrevocable end to the enterprise. By contrast a lockout involves the shutting of the place of business while the business as a going concern continues to exist. The Court pointed out that experience of industrial tribunals shows that employers often employ lockouts as a tactical device to compel employees to accept their proposals, just as employees use strikes as a tactical device to compel employers to meet their demands. Although the theoretical distinction between closure and lockout is clear, the Court recognised that in practice it is not always easy to determine whether an employer’s action amounts to a genuine closure or is a disguised lockout. Consequently, industrial adjudication must examine numerous relevant facts, which may be proved before a tribunal by oral testimony, documentary evidence, and evidence of conduct and surrounding circumstances. When a serious dispute arises between an employer and employees over a closure that the employees allege to be a lockout, the ensuing inquiry is likely to be lengthy and detailed, and the final decision must rest on a careful examination of the entire body of evidence. In light of these observations, the Court held that the approach adopted by the Appeal Court in the present proceedings was both proper and appropriate. The Court affirmed that the High Court undeniably possessed the jurisdiction to order the industrial tribunal to stay its proceedings and to undertake the preliminary inquiry itself, and that this jurisdiction was not in dispute. However, the Court emphasized that the High Court should exercise such jurisdiction only when the interests of justice required it. Ordinarily, factual questions, even those involving jurisdictional facts that depend on the appreciation of evidence, should be tried by the special tribunal created for that purpose. After the special tribunal decides the preliminary issue concerning such jurisdictional facts, an aggrieved party may approach the High Court by way of a writ petition seeking an appropriate remedy. The Court warned that it would not be proper or appropriate to bypass the initial jurisdiction of the special tribunal and bring the decision of a preliminary issue before a High Court in its writ jurisdiction. The Court clarified that it was not laying down a fixed or inflexible rule; rather, whether a preliminary fact should be tried by a High Court in a writ petition must depend on the specific circumstances of each case and on the nature of the preliminary issue raised between the parties.

The Court explained that facts which determine jurisdiction must be evaluated by the specialized Tribunal that was established for that purpose. After the Tribunal has examined those jurisdictional facts and rendered a decision, any party dissatisfied with that determination may approach the High Court by filing a writ petition and request the appropriate writ. The Court stressed that it would be improper and inappropriate to bypass the initial jurisdiction of the Tribunal and present the preliminary issue directly before a High Court exercising its writ jurisdiction. However, the Court made clear that this observation does not create a rigid or inflexible rule; whether a preliminary fact may be tried before a High Court in a writ petition depends on the specific circumstances of each case and on the character of the preliminary issue raised by the parties. Considering the facts of the present dispute, the Court concurred with the view of the Court of Appeal that the preliminary issue should be more suitably dealt with by the Tribunal. The Court of Appeal had also indicated that any party aggrieved by the Tribunal’s finding on that preliminary issue could move the High Court in accordance with the law. Consequently, the Court rejected the argument advanced by Mr Sastri that the Court of Appeal erred in overturning the trial judge’s conclusion concerning whether the appellant’s action constituted a closure or a lookout. Before concluding this point, the Court emphasized that when the Tribunal proceeds to resolve the dispute between the parties, it must not be influenced by the observations made either by the trial Court or by the Court of Appeal regarding the transfer effected by the appellant on 29 April 1959. Both the trial Court and the Court of Appeal had expressed preferences for one view or another, but for a fair determination before the Tribunal, such observations are to be treated as obiter and must not affect the Tribunal’s independent assessment of the merits of the case.

Mr Sastri further contended that, on its face, the reference to issue No. 1 was defective. His argument was that issue No. 1, which concerns the transfer of the Andhra Prabha and Andhra Prabha Illustrated Weekly, cannot be characterised as an industrial dispute. He asserted that the appellant is entitled to transfer its business to any party it chooses on any terms it deems appropriate, and similarly the appellant may relocate its business from one place to another. According to Mr Sastri, the employees are not entitled to raise an industrial dispute in respect of such a transfer. Though this line of reasoning is presented, the Court indicated that the merit of the contention must be examined in the context of the broader dispute and that the Tribunal, free from the influence of prior observations, should consider whether the transfer raises questions that fall within the definition of an industrial dispute under the applicable legislation.

In this case, the Court noted that the appellant argued that it had the right to move its business from one location to another and that such a move could not give rise to an industrial dispute. Accordingly, the appellant submitted that the first part of issue number one lay outside the jurisdiction of the Industrial Court because it did not fall within the definition of an industrial dispute, and that if that part were excluded, the second part could not survive. The Court observed that this submission appeared attractive at first sight. However, when assessing the scope of the enquiry covered by issue number one, the Court said it could not disregard the contentions advanced by the respondents. The respondents maintained that during negotiations between the appellant and the Union, which were attended by the Acting Labour Minister and the Commissioner of Labour, the appellant attempted to insert a clause dealing with its plan to shift the Andhra Prabha to Vijayawada, and that the respondents objected to that clause. The respondents further alleged that the chairman of the appellant gave a verbal assurance that the appellant’s business would continue at Madras for two and a half years, which corresponded to the term of the agreement. Relying on that verbal assurance, the respondents claimed that the assurance formed part of the conditions of their service and that the appellant’s subsequent transfer materially altered and contravened that condition of service. In view of this allegation, the Court said the proper limits of the enquiry under issue number one must be determined. The Court also referred to a letter dated 20 April 1959 from the appellant’s director, Mr Phumbra, addressed to the respondents, which stated that when the arrangements at Vijayawada were finalised, the affected workmen would be notified in writing so that they could join at Vijayawada. Consequently, the dispute identified in issue number one hinged on the alleged verbal assurance given by the appellant’s chairman to the respondents. The Court clarified that it would not express any opinion on the merits of that controversy. Whether such a verbal assurance was actually given, and whether it would constitute a condition of service, are questions that the Tribunal must decide. Because the controversy revolves around that assurance, the Court concluded that it would be unreasonable to describe issue number one merely as a question of business transfer that cannot be an industrial dispute. The Court therefore held that the contentions raised by the respondents define the boundaries of the issue, and that the Tribunal must examine the matter within those boundaries. Accordingly, the Court declined to accept the argument that issue number one could not be validly referred to the Industrial Tribunal for determination.

In this case, the Court considered the argument concerning issue No. 2, namely that the matter had already been decided by the Government and therefore nothing remained for the Tribunal to examine. The Court acknowledged that the wording of the issue was clumsy and unfortunate. As it was phrased, the issue gave the impression that the inquiry had to proceed on the assumption that the appellant’s conduct amounted to a “lookout.” This impression was reinforced by the ill‑advised order issued by the State Government under A. 10 (2). The Court noted that the jurisdiction of an Industrial Tribunal under section 10 is confined, by S. 10 (4), to the specific points mentioned in the reference and to matters incident to those points. Consequently, the appropriate Government must draft the reference orders with great care, and the questions intended for trial must be worded so that no ambiguity or controversy can arise. A hastily or casually prepared reference often creates unnecessary disputes and lengthens industrial adjudication, which should be avoided. Nevertheless, when such a question is presented before the Courts, the Courts must interpret the reference fairly and reasonably rather than in a strictly technical or pedantic way. Interpreted in this manner, even the inelegant phrasing cannot hide the fact that the Tribunal’s primary task with respect to issue No. 2 would be to determine whether the strike by the respondents on 27 April 1959 was justified and whether the appellant’s subsequent action on 29 April constituted a “lookout” or a bona‑fide closure. The respondents would argue that the action was a “lookout,” i.e., a retaliatory measure, while the appellant would claim that it was a genuine closure. Accordingly, the Court held that it would be incorrect to say that the reference barred the Tribunal from hearing the appellant’s claim that its action on 29 April was not a “lookout” but a legitimate closure. The mere labeling of the appellant’s action as a “lookout” did not obligate the Tribunal to accept that characterization. The Court also recalled that in many cases where industrial disputes are referred with certain individuals named as workmen, employers have disputed that status, and it has never been suggested that the Tribunal’s jurisdiction is lost merely because the reference describes those persons as workmen.

The Court observed that the matter before the Tribunal was an incidental dispute. Accordingly, the Court concluded that the argument advanced by Mr. Sastri, contending that the wording of issue No 2 was intended to bar the Tribunal’s jurisdiction to determine whether the appellant’s contested action constituted a closure, was untenable. The Court therefore held that the grievance advanced by the appellant against the decision of the Appeal Court in writ Appeal No 73/1959 was not well‑founded. To prevent any further disagreement between the parties regarding the extent of the enquiry that the Industrial Tribunal may properly undertake on the present reference, the Court set out the scope of the Tribunal’s duties. With respect to issue No 1, the Tribunal was directed to examine the matter in the context of the respondents’ contention that the appellant’s Chairman had given a verbal assurance to them during earlier negotiations. Concerning issue No 2, the Tribunal was instructed to consider two aspects: first, whether the strike was justified, and second, whether the transfer carried out by the appellant amounted to a closure or merely a lookout. In carrying out this enquiry, the Tribunal was required to take into account all facts that are relevant and material to these questions.

The Court also addressed a subsidiary point concerning the order issued by the State Government under section 10(3) of the Act. The Court agreed with the findings of both the trial Court and the Court of Appeal that the State Government had been ill‑advised in issuing that order. While the State Government may have acted out of a desire to preserve industrial peace and thus exercised its authority under section 10(3), the Court observed that the full consequences of the order were not properly appreciated before its issuance. The inappropriate and improper nature of the order gave rise to the appellant’s allegation that the Government had acted malafide toward it. Consequently, the State Government was compelled to defend its action by filing an affidavit and by presenting a statement from the Government Pleader at the Bar. The Court noted that had the State Government examined the matter more carefully before promulgating the order, the present complication could have been avoided. As a result, both appeals were dismissed with costs, and a single set of hearing fees was assessed for these appeals.