An order under Section 10(3) of the Industrial Disputes Act prohibiting a strike or lock-out can only be made if the real and live dispute is referred to the Industrial Tribunal.

T. N. C. RANGARAJAN, J.

( 1 ) THESE appeals arise from the order of our learned brother G. Bikshapathy J. , declining to entertain the writ petitions challenging G. O. Rt. No. 1959 and g. O. Rt. No. 1960 both dated 23-8-1995, made under Sections 10 (1) and 10 (3) respectively of the Industrial Disputes Act

( 2 ) THE appellant is a company having a plant for manufacture of starch at kundara in Kerala/ a processing plant for dextrine at Cochin, a liquid glucose manufacturing plant at Kundara and a plant for manufacture of starches and dextrines at Hyderabad. Due to several adverse, conditions, the company became sick in April 1989 and approached BIFR which framed a scheme for rehabilitation appointing ICICI as the operating agency. The proposals did not succeed and a fresh rehabilitation scheme was being considered. By that time the accumulated loss of the company was Rs. 22. 78 crores as on 31-3-1994 of which the accumulated loss of Hyderabad Unit alone was Rs. 14. 17 crores. Hence, on 9-6-1995 the company put up a notice stating mat in spite of its best efforts it was impossible to keep the factory at Hyderabad open, since me power supply had been disconnected on 29-3-1995 and water supply on 25-5-1995 for non-payment of bills. It, therefore, declared a temporary closing-down of the factory and suspension of the manufacturing activity amounting to lock-Out of the workmen other than administrative and technical staff and watch and ward. On 30-6-1995 the lock-out was extended to the other managerial and technical staff also. The employees union made a representation to the Conciliation officer on 14-7-1995 claiming that the lock-out was not bom fide and should be lifted. The Condition Officer reported fallure of the condition. There upon the Government issued the impugned notification by which the following question was referred to the Industrial Tribunal for adjudication. G. O. Rt. No. 1959 referred the following question:"whether the Laxmi Starch Employees Union (Regd. No. B-l96), nacharam, Hyderabad, is justified in demanding wages for the lock-out period effective from 10-6-1993 ? If so, to what relief the workmen are entitled to?"consequently, G. O. Rt. No. 1960 prohibited the further continuance of the lock- out.

( 3 ) THE management thereupon approached this Court by the said writ petitions contending mat the real dispute as to whether the lock-out was justified, not having been referred, the G. O. prohibiting the continuance of the lock-out was untenable, and relied on the decision of 9 Bench of this Court in writ Petition No. 9101 of 1993 dated 2-2-1995. However, the learned single judge was of the view that a dispute having been already referred, the notification under Section 10 (3) of the Act did not suffer from any infirmity and declined to interfere.

( 4 ) IN these appeals. it was submitted by the learned counsel for the appellant mat the learned single Judge had not considered the effect of the decision of the bench, relied on by him when it had actually followed the decision of the madras High Court in Express Newspapers Employees Union vs. Express newspapers, which was affirmed by the Supreme Court in Express Newspapers (P) limited vs. The Workers. In view of this, we admitted the writ appeals and set down the same for orders. The learned counsel for the respondent-Union submitted mat the lock-out is always understood as a retaliatory action of the employer and since the notices issued by the management itself stated that there was no dispute or disharmony between the workmen and the management, this was not a lock-Out but a lay-off, which required payment of 50% of the wages.

( 5 ) THE position with respect to an order under Section 10 (3) of the Act prohibiting the strike or lock-out has been succinctly set out by Krishna Iyer, J. , in Delhi Administration vs. Workmen of Edward Keventers and another as follows:"in regard to such disputes as are not referred under Section 10 (1), sec. 10 (3) cannot operate. "

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