A man has a right to relinquish his business, to close down without being coerced to continue or to recommence, a right to transfer his business elsewhere, to sell, or to split up his business elsewhere, to sell, or to split up his business into several subsidiary units.

Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - S. 10(1)(d), 10(3), 25FFF - CONSTITUTION OF INDIA, ART. 226 - WRIT OF PROHIBITION - INDUSTRIAL TRIBUNAL - JURISDICTION - CLOSURE OF BUSINESS - LOCKOUT - TRANSFER OF PUBLICATION RIGHTS - REFERENCE BY GOVERNMENT - VALIDITY - INDUSTRIAL DISPUTES ACT, 1947 - S. 2(K) - INDUSTRIAL DISPUTE - DEFINITION - INDUSTRIAL TRIBUNAL - JURISDICTION - WRIT OF PROHIBITION - WHEN CAN ISSUE - INDUSTRIAL DISPUTES ACT, 1947 - S. 10(3) - ORDER UNDER - WHEN CAN BE ISSUED - INDUSTRIAL DISPUTES ACT, 1947 - S. 25FFF - SCOPE.
Fact of the Case:

The management of the Express Newspapers (Private), Ltd., Madras, notified that they intended to retrench 59 workers, and an industrial dispute was raised about this. On 20 May, 1958, the Government referred the question for adjudication to the industrial tribunal, Madras. Upon the overruling of certain preliminary objections, the management came up to this court with Writ Petition No. 810 of 1958; this was, however, finally withdrawn on 5 December, 1958. On 12 October, 1958, the Employees' Union made certain complains to Government, as a result of which the Minister for Home held discussions in the presence of both parties, which were, however, unfruitful. On 31 October, 1958, the management, for the first time, intimated an intention to close down their publications at Madras and notified the employees that all workmen would be paid Compensation according to law. The Minister for Home again intervened and this time a settlement was effected between the parties, embodied in a memorandum drawn up on 6 November, 1958 under S.12(3) of the Industrial Disputes Act. This settlement was to subsist for a period of 2 1/2 years, and the case of the employees is that Mr. R. N. Goenka, the Chairman of the Express Newspapers, Ltd., then agreed in the presence of the Minister, Sri M. Baktavatsalam, and the Labour Commissioner, Sri V. Balasundaram, that the paper Andhra Prabha will not be shifted for publication to Vijayawada during this period, and that its workmen will hence be continued to be employed as heretofore at Madras. Admittedly, this was a verbal assurance, and it was not included as a term of the memorandum. But the point made by the learned counsel for the workers (Mr. Mohan Kumaramangalam) is that the workers were making protests regarding the contemplated sale of Andhra Prabha publication rights and its consequent transfer to Vijayawada, from a very early stage, on the basis of this alleged assurance, while the disclaimer or denial in respect of it by Sri R. N. Goenka came at a late stage of the proceedings between the two parties.
Finding of the Court:

The tribunal had jurisdiction to enquire into the reference by the Government now clarified by them and delimited by us, and having such jurisdiction, it is for the tribunal on the materials placed before it to adjudicate whether there was closing down of the business or a reprisal lockout disguised as a closure or clothed with its semblance.
Issues: Whether the transfer of publication rights in Andhra Prabha and Andhra Prabha Illustrated Weekly to a different concern functioning at Vijayawada, is part of the same problem of "closure."
Ratio Decidendi: Under the fundamental rights guaranteed by the Constitution [Art. 19(1)(g)] a man has a right to relinquish his business, to close down without being coerced to continue or to recommence, a right to transfer his business elsewhere, to sell, or to split up his business elsewhere, to sell, or to split up his business into several subsidiary units. These rights are not unqualified, as pointed in Indian Metal and Metallurgical Corporation v. Industrial Tribunal, Madras 1952 (1) LLJ 364]. But those exceptional restraints or provisions are not now relevant.
Final Decision: W.A. No. 73 of 1959 is allowed in part, in the following manner. It is unfortunate that the defective wording of the reference by Government renders it impossible for us to make a more elegant demarcation of the extent to which the writ of prohibition should now run; and the extent to which the industrial tribunal will be clothed with jurisdiction to make a further enquiry. We hope, however, that out meaning has been clearly and unambiguously expressed. 28. (1) Firstly, the writ of prohibition will be set aside in so far as the main question is concerned, whether the strike of the workers was justified, and whether the subsequent steps taken by the employers amount to a real and bona fide "closure." The tribunal has jurisdiction to proceed into this matter, and, if it finds that what has ready occurred is a reprisal "lockout, " it has power to determine and award further reliefs to the workmen which may be appropriate. (2) If the tribunal finds that there was really a "closure", then it would have no further jurisdiction to proceed with the enquiry, except to determine whether all due reliefs have been awarded to the workmen under the Act, with regard to the provisions and rules applicable to a closure of business. (3) If the tribunal erroneously decides the issue of jurisdiction, viz., whether there has been a "lockout" or "closure" and assumes a further jurisdiction on the basis of such decision, the aggrieved party would have the right to apply to this Court immediately for redress, through the issue of an appropriate writ. (4) The tribunal will have jurisdiction to determine whether the assurance referred to by the workmen was given, whether it is binding, and what its consequences are. In this context, the tribunal will the jurisdiction to proceed into the circumstances of the transfer of publication rights in the Andhra Prabha and the Andhra Prabha Illustrate Weekly and the attempt to restablish this concern at Vijayawada. The tribunal has no jurisdiction to proceed into the sham nominal or benami character of the transfer or the right of the proprietor to set up one item of his business elsewhere even through the instrument of a nominal transfer per se. These can be ascertained purely as evidentiary matters, and the workers have no right to have such transactions impugned, or set aside. But the workers may claim that they are entitled to be reinstated at Madras, by virtue of the assurance, for the relevant period, or entitled to be transferred to the new concern at Vijayawada with certain further rights regarding allowances, etc. These matters may be properly determined by the industrial tribunal. Finally, we would reiterate the observations of the learned Judge that Government ought not to take any steps in furtherance of their order under S.10(3) of the Act, unless it is hereafter clearly established that the employer has been, and is, indulging in a reprisal lockout. W.A. No. 85 of 1959 is dismissed. We make no order as to costs in respect of these appeals.

Judgment :-

ANATHANARAYANAN, J

Anathanarayanan, JThese are connected Letters Patent Appeals from the order of Balakrishna Ayyar, J., in Writ Petitions Nos. 443 and 450 of 1959 before him, in both of which the petitioner was the management of the Express Newspapers (Private), Ltd. In Writ Appeal No. 73 of 1959, the appellants are the workers and staff of the Express Newspapers (Private), Ltd., represented by the secretary of Employees' Union, and another. In Writ Appeal No. 85 of 1959 the appellant is the management of the Express Newspapers (Private), Ltd. In Writ Petition No. 450 of 1959, the learned Judge directed that issue of a writ of prohibition, barring the industrial tribunal from proceeding into the first part of the first question and the first part of the second question referred to it by Government, in a reference under S. 10(1)(d) of the Industrial Disputes Act. In Writ Petition No. 443 of 1959, which related to an order of the Government simultaneously issued under S.10(3) of the Act, the learned Judge held that no orders were necessary beyond a certain clarification, which he accordingly made.

2. The background of facts in relation to which these references by Government were issued, has been dealt with in some detail in the order of the learned Judge. For the purposes of these appeals, it will be sufficient if the broader landmarks of the events are indicated. The Express Newspapers (Private), Ltd., Madras, is a private proprietary business which prints and publishes various periodicals and dailies. They include the Indian Express, Andhra Prabha and the Andhra Prabha Illustrated Weekly. For more than two years past, there have been disputes and legal proceedings between the management and their employees. In March 1957, a dispute was raised by the employees on certain points, and the Government of Madras made a reference to the industrial tribunal which passed an award in November 1957, upon the four questions referred to it for adjudication. Admittedly, the management took up this matter in appeal to the Supreme Court, and obtained a stay in respect of portions of this award.

3. In March 1958, the management notified that they intended to retrench 59 workers, and an industrial dispute was raised about this. On 20 May, 1958, the Government referred the question for adjudication to the industrial tribunal, Madras. Upon the overruling of certain preliminary objections, the management came up to this court with Writ Petition No. 810 of 1958; this was, however, finally withdrawn on 5 December, 1958. On 12 October, 1958, the Employees' Union made certain complains to Government, as a result of which the Minister for Home held discussions in the presence of both parties, which were, however, unfruitful. On 31 October, 1958, the management, for the first time, intimated an intention to close down their publications at Madras and notified the employees that all workmen would be paid Compensation according to law. The Minister for Home again intervened and this intervened and this time a settlement was effected between the parties, embodied in a memorandum drawn up on 6 November, 1958 under S.12(3) of the Industrial Disputes Act. This settlement was to subsist for a period of 2 1/2 years, and the case of the employees is that Mr. R. N. Goenka, the Chairman of the Express Newspapers, Ltd., then agreed in the presence of the Minister, Sri M. Baktavatsalam, and the Labour Commissioner, Sri V. Balasundaram, that the paper Andhra Prabha will not be shifted for publication to Vijayawada during this period, and that its workmen will hence be continued to be employed as heretofore at Madras. Admittedly, this was a verbal assurance, and it was not included as a term of the memorandum. But the point made by the learned counsel for the workers (Mr. Mohan Kumaramangalam) is that the workers were making protests regarding the contemplated sale of Andhra Prabha publication rights and its consequent transfer to Vijayawada, from a very ea

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