P L D 1964 (W (PLP)

MUHAMMAD AKRAM, J.-In this petition under Article 98 of the Constitution of the Republic of Pakistan, the Colony Textile Mills Ltd., Lahore, has questioned the jurisdiction of the Assistant Director Labour Welfare (Conciliation), Lahore Region, Lahore, and the Industrial Court West Pakistan, constituted under the Industrial Disputes Ordinance (LVI of 1959) (hereinafter referred to as the Ordinance) to entertain, investigate and settle certain demands by respondents Nos. 3 to 13, ex-employees of the Civil and Military Gazette, who claim to be workmen by virtue of the provisions of the Working Journalists (Conditions of Service) Ordinance (XVI of 1960).

2. The Civil and Military Gazette, Lahore, was one of the leading daily newspapers in circulation in this part of the country for over a century until its publication was discontinued on the 3rd of September 1963. In 1962, the petitioner, a limited company registered under the Companies Act, 1913, acquired the newspaper establishment of the Civil and Military Gazette and took upon itself the task of printing and publishing the newspaper for the future. In the hope of improving the prospects of the paper after its acquisition by the petitioner, the Company employed respondents Nos. 3 to 13 as journalists to work in its newspaper establishment under separate contracts entered with them on different dates between October 1962 and December 1962. It was mutually agreed between the company and these journalists that during the first three years of their employment the services of respondents Nos. 3 to 13 were not liable to be terminated by the petitioner except on grounds of misconduct or unsatisfactory work and that their conditions of employment shall be regulated by the provisions of the Working Journalists (Condi tions of Service) Ordinance (XVI of 1960).

3. According to the petitioner, the Company sustained losses in this venture and the publication of the newspaper had to be stopped by it on the 3rd of September 1963. It is a common ground that after that no issue of the Civil and Military Gazette was published by the petitioner. The company, however, continued to retain the services of respondents Nos. 3 to

13. On the 18th of September 1963, the Management circulated an office order (annexure R. 3/E) by which the office hours of the staff were regulated by the company and directions were issued to the members of the staff of the company to strictly observe them. On the 20th of September 1963, the librarian under the directions of the Managing Director of the Company removed all the books from the shelves of the Acting Editor of the newspaper.

4. Respondents Nos. 3, 4, 5, 7 and 8 as the duly appointed representatives of the employees of the company sent a strike notice (annexure R. 3/F) to the company on the 20th of September 1963 protesting against the stoppage of publication of the Civil and Military Gazette. In this notice they made certain demands on the Management and it contained a warning that in case the demands of the workers were not accepted by, the Management within one week, they shall go on strike with effect from the 7th of October 1963.

5. On receipt of the strike notice respondent No. 1 started conciliation proceedings for promoting a settlement of the dispute between the parties in the exercise of the powers vested in him under section 4 of the Industrial Disputes Ordinance, 1959. In a meeting between the representatives of the parties, with respon dent No. 1 on the 8th of October 1963, the petitioner put in a written statement (annexure R. 3/H) wherein it was objected that there was no "industrial dispute" between the Management and its employees so as to confer any jurisdiction on respondent No. 1 to commence the conciliation proceedings under the Ordinance, that the publication of the Civil and Military Gazette had stopped permanently and there was not the slightest or the remote possibility for the company to resume the publication of the paper, that the establishment was closed down permanently and irrevocably for reasons unconnected with any industrial dispute or with the terms and conditions of the service of employees. The Management refused to accept the demands of the employees and averred that the services of some of the workers had already, been terminated by the Company and as regards the remaining employees although the Company was not legally bound to retain them, yet it was merely trying to honour its words and was paying them for getting no return.

6. Respondent No.l in spite of the objection of the company against his jurisdiction started his proceedings and issued a certificate of failure of conciliation proceedings on the 18th of October 1963 under section 4 (5) of the Ordinance. He has certified that the conciliation proceedings in the industrial dispute which were started before him on the 21st of September 1963 between the Management of the Civil and Military Gazette, Lahore and their workers on the issues specified in the schedule attached with the certificate, had failed on the 18th of October 1963. The schedule annexed to the certificate contains the abstract of demands, which were raised before respondent No. 1 on behalf of the workmen against the Company.

7. On the basis of this certificate of failure, respondents Nos. 3 to 13 applied to the Industrial Court, West Pakistan under section 4(5) of the Ordinance for adjudication and determination of their dispute with the company arising out of these demands. The Industrial Court on the 18th of November 1963, issued summons to the company for the 30th of January 1964 to answer all material questions relating to the matter under investigation by the Court. 7-A. This case was still pending in the Industrial Court when on the 9th of October 1963 the employees served another strike notice on the Company containing some additional demands. On this respondent No. 1 again started his conciliation proceedings, and the Company once again raised similar objections to his jurisdiction to entertain those demands and to start his proceedings. Respondent No. 1, again overruled these objections and issued another certificate of failure of the conciliation proceedings on the 21st of December 1963 (annexure `D').

8. In the meantime the petitioner by its letter dated the 19th of December 1963 (annexure `C') addressed to respondents Nos. 3 to 13 informed them that their agreements of service with the company had become incapable of performance due to the closure of the newspaper establishment for reasons beyond their control and that from the date of the closure they had ceased to be in the service of the Company and were not entitled to receive any salary or other emoluments from the Management and further that they were not expected to attend the office or other establish ment under the control of the Company. In this notice the Management, however, expressed its readiness to amicably settle with them their claim for reasonable compensation due to them for this premature termination of the contracts for the reasons beyond their control. On receipt of this notice respondents Nos. 3 to 13 applied under section 29 read with section 30 of the Ordinance to the Industrial Court for suitable action against the Company for illegally terminating their services to their prejudice during the pendency of the industrial dispute without the permis sion in writing of the Conciliation Officer or the Court.

9. These disputes between the parties were still pending in the Industrial Court and the petitioner on the 3rd of January 1964 filed this writ petition against the respondents for a declara tion that the two orders passed on the 18th of October 1963 and the 21st of December 1963 by respondent No. 1 and the summons issued on the 18th of November 1963 by respondent No. 2 to the Company for appearance on the 10th of January 1964, were without lawful authority and of no legal effect. It has been reiterated in this petition that the closure of the establishment of the Company under the circumstances was complete and irrevocable and that no industrial dispute existed or arose between the employer and the workmen so as to attract the provisions of the Ordinance and that respondents Nos. 1 and 2 have no jurisdiction to entertain, negotiate and settle the differences, if any, between them. . It has been further alleged by the Company in its petition that the Working Journalists (Conditions of Service) Ordinance, 1960, has also no application to the case because after the closure of the newspaper establishment respondents Nos. 3 to 13 have ceased to be the "working journalists" for the purpose of this Ordinance and that there was no jurisdiction in respondents Nos. 1 and 2 to entertain and adjudicate upon their grievances.

10. The respondents have controverted these allegations of the petitioner. Respondents Nos. 3 to 13 have, alleged that after their employment by the Company, the effective circulation of the Civil and Military Gazette had in fact considerably increased. In spite of this the petitioner stopped the publication of the news paper on flit: 3rd of September 1963 although its establishment continued to function even afterwards as is evident from the fact that not only the services of the respondents but also those of the General Manager of the Civil and Military Gazette and several other employees on the managerial side and the press had been retained by the Company. It has been further averred by respon dents Nos. 3 to 13 that after the stoppage of the publication of the Civil and Military Gazette the petitioner verbally told Mr. Zuhair Siddiqi; respondent No. 3, that he wanted to start the publication of an English Weekly in the very near future and that it was for this reason that the services of respondents Nos. 3 to 13 were being retained by the Company. It has been reiterated by them that after the issue of the office order dated the 18th of September 1963 mentioned above a regular register of attendance was being maintained by the Company in its office in which respondents Nos. 3 to 13 as well as the General Manager used to sign their attendance regularly and that the Company was also maintaining separate leave register in order to keep an account of the leave granted to the employees after the 3rd of September 1963. According to them even the designation of each and every one of the respondents as the working journalists for the Company was retained by the petitioner after the 3rd of September 1963. They have also denied that the contracts of service between the parties became incapable of performance for any reason beyond the control of the Company or that it had the effect of terminating their appointment which was valid for a fixed period. They have further asserted that so far as the newspaper establishment itself was concerned, there has never been any bona fide closure and that it continued to exist and function after the 3rd of September 1963 as well. They have maintained that in reality the Management has resorted to a lock out as mala fide device in order to coerse its workmen to surrender their legitimate demands against the Company. They have denied the allegations of the petitioner that there was no "industrial dispute" between the parties or that they have ceased to be the working journalists and that respondents Nos. 1 and 2 have no jurisdiction to entertain, negotiate, settle and adjudicate the demands made by them against the Company under the two Ordinances.

11. Respondents Nos. 1 and 2 have also, contested this petition and they have supported the allegations of respondents Nos. 3 to 13 in general.

12. According to the scheme of the Industrial Disputes Ordinance (LVI of 1959) and the rules made there under, five or more workers can join together to serve a notice of strike on the Management and in case their demands remain unfulfilled, the Conciliation Officer has to mediate for an amicable settlement of the industrial dispute between the parties. Subsection (1) of section 5 of the Ordinance provides that where an industrial dispute exists or is apprehended the Conciliation Officer shall hold conciliation proceedings in the prescribed manner. In accordance with subsection (2) of section 5 the Conciliation Officer has to investigate the dispute with a view to bring about a settlement between the parties. Under section 5(4) if no settlement is arrived at within the prescribed time, the Conciliation Officer shall issue a certificate to the parties to that effect and under subsection (5) any party to whom a certificate is issued may apply to the Industrial Court for adjudication and determination of the dispute. The Industrial Court is constituted under section 7 by the appro priate Government for adjudicating and determining any industrial dispute or any matter appearing to be connected with or relevant to such disputes and section 10(a) of the Ordinance lays down that the Court shall adjudicate and determine any industrial dispute in respect of which an application is made to it under section 5(5) and clause (d) of section 10 further provides that the Court shall exercise and perform such other powers and functions as are or may be conferred or imposed on it by or under the Ordinance. The "industrial dispute" itself has been defined in section 2(h) of the Ordinance.

13. Mr. M. Sleem, Bar-at-Law, the learned counsel for the petitioner, has argued that admittedly the publication of the Civil and Military Gazette stopped altogether on the 3rd of September 1963. He contends that by that time no dispute in fact arose between the Management and its workers and respondents Nos. 3 to 13 put up their demands long after the 3rd September 1963 after the industry had itself closed and the business had come to an end. According to the learned counsel, respondents Nos. 1 anti 2 have no jurisdiction to entertain any demand and proceed to investigate it under the Ordinance after the undertaking had ceased to exist. He has further stressed that with the stoppage of the newspaper on the 3rd of September 1963, respondents Nos. 3 to 13 ceased to be the "Working Journalists" within the meaning of the Working Journalists (Conditions of Service) Ordinance (XVI of 1960) and for that reason as well the respondents were not entitled to invoke the provisions of the Industrial Disputes Ordinance (LVI of 1959). In short the argument of the learned counsel for the petitioner is that no "industrial dispute" arose between the parties within the meaning of the Ordinance and consequently respondents Nos. 1 and 2 have no jurisdiction to entertain, negotiate and settle the demands made by respondents Nos. 3 to 13.

14. In the strike notice (annexure R. 3/F) dated the 20th of September 1963, respondents Nos. 3 to 13 have inter alia made the following demands on the Management:- "(1) To start the publication of the Civil and Military Gazette immediately on the same scale on which it was running at the time of its closure; or in the alternative; (2) to pay immediately all the dues accruing to the employees on contract by virtue of the contracts of service entered into by them and which are detailed in annexures attached and the damages due to them on account of violation of their service contracts ; (3) to pay immediately all the dues accruing under the Wage Board Award and the other laws and regulations relating to the service of working journalists to all the other working journalists on the staff of the Civil and Military Gazette on the date of its closure; (4) to pay immediately all the legal dues and entitlements of the press and clerical staff working on the Civil and Military Gazette on the date of its closure." As already mentioned, these demands were followed by another notice sent by the employees to the Management of the Company on the 30th of January 1964 calling upon the Company to restore to the workmen some of the facilities enjoyed by them before the stoppage of the publication of the newspaper.

15. As regards the Demand No.1 above, can the Company be compelled against its own wishes that it must resume the publication of the newspaper and that too on the same scale on which it was running in the past? Subject to reasonable restric tions a citizen has the freedom to engage himself in any lawful trade or business under the Constitution and this carries with an equal freedom in him to stop and discontinue any trade or business undertaken by him. The State has the undoubted right to regulate a running industry by imposing reasonable restrictions. But regulation is one thing and the compulsion to carry on business is something quite different. The newspaper publication is a non-public utility service and even the State cannot compel the petitioner against its wishes to continue or resume the publica tion of its paper after its stoppage by the Company. There cannot be any real dispute between the employer and the employee as regards the continuance or the discontinuance of the business itself. It is the unqualified right of an employer to stop or to discontinue his industry at any time if he does not feel satisfied with its prospects and the Management cannot in law be compelled to continue it against its wishes. The workers have no say in the matter and they cannot object to the closure, stoppage or discontinuance of his business by the employer. Strictly speaking there cannot be any lis or dispute between the employer on the one hand and employees on the other as regards the continuance or discontinuance of the business itself and such a question is outside the purview of an "industrial dispute" within the meaning of the Industrial Disputes Ordinance, 1959. It cannot be said that because several employees are likely to be throw out of service, as a result of the closure, the employer can be compelled so that he must carry on the business against his wishes. There cannot properly be any "industrial dispute" about such a controversy if raised on behalf of the workmen. The object of all labour legislation is to provide for social justice, to look after the welfare of the workers, to safeguard fair terms for them in their employment and to prevent dispute between employers and employees so that production might not be adversely affected and the larger interest of the public might no suffer. These objects can be achieved in an existing industry only and not where the industry itself has closed and come to an end. The entire scheme of the Industrial Disputes Ordinance, 1959, is based on the assumption that there is an industry in existence and it goes on to devise ways and means for the settlement of the disputes between the interested parties in an existing industry The elaborate provisions of law for the conciliation and settle ment of industrial dispute, prohibition and prevention of strikes and lock-outs about the persons on whom settlements and awards are to be binding, the period of operation of settlements and awards have meaning only if the industry is running. These various provisions of the Ordinance lose their real significance, in an industry which is already dead. The demand by respondent Nos. 3 to 13 against the petitioner that it should be made to" resume the publication of the newspaper does not constitute an "industrial dispute" and respondents Nos. 1 and 2 have no jurisdiction at all to enter upon or entertain any such controversy.

16. On behalf of the respondents it has been argued that there has never been any real and bona fide closure or dis continuance of the newspaper business by the petitioner-company and that the Company has adopted this hoax and a subterfuge as a pretext of closure in order to victimise the workmen and to force them to give up their legitimate demands against the Company. According to the respondents, the petitioner has resorted to an illegal labour practice in the nature of a lock-out in the guise of the alleged stoppage of the Civil and Military Gazette and, therefore, both the Conciliation Officer and the Industrial Court have jurisdiction to entertain the dispute.

17. A "lock-out" is to be distinguished from the closure and discontinuance of business by the employer. "Lock-out" is defined in section 2(i) of the Ordinance and it means closing of a place of employment or the suspension of work by an employer. Intakes place in connection with an industrial dispute anti is intended for, the purposes of compelling the employees to accept Certain terms and conditions of or affecting their employment. The question whether the stoppage of business was a temporary suspension of work as a mere device in the nature of lock-out or a genuine closure and discontinuance of the business, will always depend upon the number of factors and the circumstances of each case and sometime a distinction between the two may even be very thin. In this case according to the respondents, after the stoppage of the publication of the Civil and Military Gazette, the staff and the establishment of the newspaper was retained by the petitioner and they, continued to serve the petitioner till they received the notice dated the 19th of December 1963, from the Management. They have also relied on the affidavit of Mr. Zuhair Siddiqi, respondent No. 3. who has sworn that; when the Civil and Military Gazette stopped publication abruptly on the 3rd of September 1963, he contacted the petitioner in order to find out the actual cause for this action by the Company and the petitioner expressed his inability to respondent No. 3 to continue with the publication of the daily newspaper but he was told at the same time that the petitioner wished to start the publication of a weekly in the very near future and it was because of that reason that the petitioner was retaining the services of respondents Nos. 3 to 13 in the Company. Even according to this affidavit of respondent No. 3, the petitioner had expressed his inability to continue with the publication of the newspaper after the 3rd of September 1963 and the Company had some other plans to resort to the publication of a weekly in the near future. This leaves no room for doubt that in so far as the publication of the Civil and Military Gazette was concerned it was stopped on the 3rd of September 1963, never to be resumed again by the Manage ment for reasons unconnected with any industrial dispute and no law can compel the petitioner to again start with its publication against its wishes on the same scale on which it was previously running. At best the grievance of the respondents can be that -in spite of the alleged undertaking given to them, the petitioner has failed to start the publication of the proposed news weekly. The alleged breach of any promise or undertaking of this kind cannot give rise to an "industrial dispute" between employer and the 1 workmen nor can it be interpreted to be a "lock-out" by any stretch of imagination.

18. Moreover, it appears that this demand of respondents Nos. 3 to 13 for the resumption of the publication of the daily newspaper was abandoned by them before the Conciliation Officer, during the course of the proceedings before him. The two certificates of the failure of the conciliation proceedings issued on the 18th of October 1963, and the 21st of December 1963, by respondent No. 1 are accompanied by the schedule containing the specific issues on which the negotiations failed between the parties and reference was made to the Conciliation Court in accordance with law. There is no specific issue referred to respondent No. 2 which arises out of the Demand No. 1 above made on behalf of the workers for the resumption of the publica tion of the Civil and Military Gazette by the Company and this demand seems to have been dropped at the time of making the reference to respondent No.

2. The issue certified by respondent No. 1 for reference to respondent No. 2 on the other hand go to show that the closure of the newspaper by the Management was not challenged by the employees before the Conciliation Officer but their alternative demands and claims arising out of premature termination of the contracts and the services of the workmen were pressed by the respondents against the Manage ment during the course of those proceedings.

19. Be that as it may, in our opinion, the demand of the respondents for the resumption of the daily newspaper after its stoppage on the 3rd of September 1963 does not constitute an industrial dispute nor can it be regarded as a lockout and; respondents Nos. 1 and 2 have no jurisdiction to entertain, settle and adjudicate upon this demand of respondents Nos. 3 to 13, under the provisions of the Industrial Disputes Ordinance, 1959.

20. However, between October 1962 and December 1962, on different dates, respondents Nos. 3 to 13 were employed by the Management on contracts for a period of three years as working journalists for the Company and the closure of the industry has resulted in a premature termination of their services. Some of the demands of the workers which have been referred to respondents Nos. 1 and 2 relate to their claims for the payment of the salaries and allowances due to the staff for the un-expired period of three years of their service and for payments in lieu of un-availed privileged leave, gratuity, provident fund, compensa tion for the loss in prospects of their services for the premature termination of their services. There are some claims which relate to the demands of the workmen pertaining to a period even prior to the termination of their services. These include claims for payment of the provident fund, transport allowance earned by the staff, remuneration for certain special contributions by the acting editor and the full implementation of the Wage Board Award from January 1961. The rest of the demands cover the past as well as the future. The more important question in this case relates to the jurisdiction of respondents Nos. 1 and 2 to entertain all or any of these disputes and differences after the industry has itself ceased to exist and was closed down. The "industrial dispute" is defined in clause (h) of section 2 of the Industrial Disputes Ordinance, 1959, as under: "Industrial dispute" means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employ ment or with the conditions of work, of any person." This definition is comprehensive enough to include within its scope every dispute and difference between employers and workmen which is connected with the employment or non- employment or with the terms of employment or with the condi tions of work of any person. Just as a dispute connected with employment of workmen or with the terms of his employment would be included in the definition of an "industrial dispute, there is no reason why a dispute connected with his "non -employment" should not be covered by it. The expression "non-employment" has been used in juxta-position with "employ ment" and would mean the state in which the employment of a worker is put to an end, it means the termination of service, removal or dismissal of the workmen for some reason or other. The definition would cover all matters, in controversy between the employers and workmen, which require settlement between them touching or arising out of the termination of the services of workmen and the reliefs claimed by them from their employers in that behalf. It is comprehensive enough so as to include the claims of workmen to the reliefs which flow to him from the termination of his service and to which he may be entitled.

21. In The India Paper Pulp Co. Ltd. v. The India Paper Pulp Workers' Union and another (AIR 1949 F C 148) it was remarked as under :- "As the question of non-employment is an industrial dispute the claim for compensation for wrongful dismissal, i.e., non -employment is clearly a dispute in connection with non-employ ment and so an industrial dispute." A demand for compensation by a workman for wrongful termina tion of his service against his employer raises an "industrial dispute" which can be processed through the agencies set up by the Industrial Disputes Ordinance, 1959.

22. In Vere Cornwell Bird and others v. Joseph Reynold O Neal and another (1960 A C 907), their Lordships of the Judicial Committee agreed with the trial Judge in rejecting the contention of the respondent that there can be no "trade dispute" within the meanings of the Trade Unions Act, 1939, between a dismissed employee and a dismissing employer if the dismissal was lawful. The demand of the employee in that case was for his re-instatement or payment of compensation to her and the definition under consideration was similarly worded as that of the term "industrial dispute" in the Industrial Disputes Ordinance, 1959.

23. In another reported case Rex v. The National Arbitra tion Tribunal Ex parte Horatic Crowther & Co. Ltd. (1948 K B 424) the analogous definition of "trade dispute" again came up for con sideration and Lord Goddard, C. J. in delivering his judgment has remarked as under:- "It was submitted by Sir William McNair that, as at the date of the reference, due notice had been given to the work men to terminate their employment and their employment had thereby been terminated, there could be no trade dispute to refer, because there could not be a dispute or difference on any subject between these employers and workmen as the workmen were not in the service of the employers, and he reinforced this argument by reference to the definition of "workman" which, he submitted, contemplated an existing contract of service so, as he put it, that there could be some contract on which the reference could "bite". I cannot agree with that submission. If effect were given to it, it would mean that any employer, or indeed, any workman, could nullify the whole provisions of the order and the object of the regulation under which it was made, by terminating the contract of service before a reference was ordered or even after the matter was referred, but before the Tribunal considered it. It is in my opinion quite clear that there was here a trade dispute existing at any rate down to the date of the dismissal of the workmen. That is not in issue, and whether the workmen were discharged for the bona fide reason that supplies were cut down, or whether they were discharged because the Company were not willing to accede to their demands is, in my opinion, immaterial." From the above it is clear that a dispute or difference arising, out of or connected with the dismissal or removal of an employee) is an "industrial dispute" within the meaning of the Ordinance.

24. It is still to be seen whether a demand of this nature in a case where the industry itself has ceased to exist can be brought before a Conciliation Officer or the Industrial Court for its settlement within the purview of the Ordinance. As discussed earlier in this, judgment, there cannot be any industrial dispute between an employer and an employee about the stoppage of the business itself and that demand is wholly outside the ambit of the Industrial Disputes Ordinance. But there is hardly any doubt that the closure of an industry by the Management is subject to the rights of the workmen to which they may be entitled under law against their employer. The question of compensation for wrongful termination of their services, salaries and allowances etc., for the un-expired period of service of a workman are intimately connected with and simultaneously arise out of the J closure of the industry by the Management. Any dispute or difference over the demands for the payment of compensation due to the employees discharged or removed from the service as a result of the closure of the business by the employer is covered by the scope of the term "industrial dispute" within the meaning of the Ordinance. In fact without the settlement of these claims of the workers, the closure of the industry will be incomplete and its establishment cannot be effectively wound up without the settlement of the legitimate claims of the workers in this connection.

25. In Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union (A I R 1957 S C 95), Messrs Pipraich Sugar Mills at Pipraich sustained losses in its business. It was decided by the Manage ment to close the Mill. The plant and machinery was sold by them to a party in Madras, who wanted to remove it to Madras. After some fruitless attempts at getting the workmen to co-operate with them in dismantling the machinery, the Management put up a written notice on the 28th of February 1961 discharging them from service on a 15 days' notice. Ultimately, the Management on the 14th of March 1961, issued a further notice declaring that the sugar mill plant would be made over by the Management from the 15th of March 1961 to the purchasers, and that as there was no work left the workers stood discharged from the service since the 1st of March 1961 subject to the payment of 15 days wages to them. On the 16th of November 1961, the Provincial Government referred the dispute between the Management and the workmen for adjudication by the Industrial Tribunal. In these circumstances the Supreme Court of India has observed:- "the object of all labour legislation was firstly to ensure fair terms to the workmen, and secondly to prevent disputes between employers and employees, so that production might not be adversely affected and the larger interest of the public might not suffer. Both these objects again can have their fulfillment only in an existing and not a dead industry. The view, therefore, expressed in Indian Metal and Metallurgical Corporation v. Industrial Tribunal, Madras (A) (Supra) and K. M. Padentanabha Ayyar v. State of Madras (B) (Supra), that the industrial dispute to which the provisions of the Act apply is only one which arises out of an existing industry is clearly correct. Therefore, where the business has been closed and it is either admitted or found that the closure is real and bona fide, any dispute arising with reference thereto would, as held in K. M. Pedemunabha Ayyar v. State of Madras (B) (Supra), fall outside the purview of the Industrial Disputes Act. And that will a fortiorari be so, if a dispute arises if one such can be conceived after the closure of the business between the employer and employees." The Supreme Court of India has further held that it would be an industrial dispute if it arises out of an existing industry and the power to a reference to the Industrial Court must be determined with reference to the date on which the right which is the subject matter of the dispute arises. In this connection the Supreme Court has proceeded to remark as under:- "But it is argued for the appellant that even so the notifica tion dated 16-11-1951 would be incompetent as the industry had been closed before that date, and there was, therefore, no relationship of employer and employee at that point of time. In other words, the powers of the State to make a reference under section 3 will depend, according to the appellant, not only on the dispute having arisen in an existing industry but further on the continued existence of that industry on the date of the notification. We do not find anything in the language of section 3 of the Act to warrant the imposition of this additional limitation on the power of the State to make a reference. That section only requires, apart from other conditions, with which we are not concerned, that there should be an industrial dispute before there can be a reference, and we have held that it would be an industrial dispute if it arise out of an existing industry. If that condition is satisfied, the competence of the State for taking action under that section is complete, and the fact that the industry has since been closed can have no effect on it. Any other construction would; in our opinion, result in serious anomalies and grave injustice If a workman properly dismissed raises an industrial dispute and before action is taken by the Government the industry is closed, what happens to the right which the Act gives him fog appropriate relief, if the Act vanishes into thin air as soon a; the industry is closed? If the contention of the appellant i; correct, what is there to prevent an employer who intends for good and commercial reason, to close his business from indulging on a large scale in unfair labour practices, in victimization and wrongful dismissals, and escaping the con sequences thereof by closing down the industry? We think that on a true construction of section 3 the power of the State to make a reference under that section must be determined with reference not to the date on which it is made but to the date on which the right which is the subject-matter of the dispute arises, and that the machinery provided under the Act would be available for working out the rights which had occurred prior to the dissolution of the business." The definition of the "industrial dispute" in the Indian Act is no different than in the Industrial Disputes Ordinance of 1959 in force in Pakistan.

26. There is another case from India reported as Shorilal y. Second Industrial, Tribunal Punjab and another (A I R 1959 Pb. 396). In that case the Government had referred the demand of the workmen for gratuity and other benefits admissible to them consequent upon the closure of the factory. It was observed that the dispute must be held to be an Industrial Dispute because it did not arise after the closure of the mill, the rights of the workmen in respect of the closure must be deemed to have arisen simultaneously with the closure and not after the same and that they were in fact disputes so intimately connected with the closure and that they cannot be said to have arisen after the closure had come into existence.

27. In this case the publication of the Civil and Military Gazette was stopped by the Management with effect from the 3rd of September 1963. In spite of that the establishment of the press was never dissolved for some time. The machinery and assets in trade were never liquidated and there was no complete and effectual winding up of the business and the industry till long afterwards. In these circumstances the industry as a whole cannot be said to have been closed by the Management on the 3rd of September 1963, but it continued to exist even afterwards though for the purposes of its winding up. The demands in question by respondents Nos. 3 to 13 were raised by them against the Management on the 20th of September 1963 and 9th of October 1963, before the termination of their services on the 19th of December 1963, and it cannot be said that these demands were made by respondents Nos. 3 to 13 after the winding up of the industry when it had finally ceased to exist.

28. As a result of the above discussion we do not agree with this contention of the learned counsel and hold that the I alternative demands of respondents Nos. 3 to 13 for the payment of compensation for losses for the un-expired period of service, arrears, 1of salaries, allowances, gratuity, etc, due to them are covered by the definition of the terms "industrial dispute" within the) meaning of the Ordinance and respondents Nos. 1 and 2 have the jurisdiction to enter upon, settle and dispose of the case brought, before them in accordance with law.

29. This will mean that the certificate of failure of concilia tion proceedings dated the 18th of October 1963 (Annexure `A') relating to the issues specified in the schedule attached to that certificate was issued by respondent No. 1 with lawful authority in the exercise of his jurisdiction and no fault can be found with it. The second certificate of the failure of conciliation proceedings (Annexure `D') issued by respondent No. 1 on the 21st of December 1963, relates to the issues specified in the schedule attached with it. These issues arise out of the demands made by respondents Nos. 3 to 13 against the petitioner to resume the delivery of newspapers and periodicals which were being supplied to the editorial staff at the time of closure, to allow the emyloyee to use the library, to supply the reference books, etc. to the Editor and sub-editors, to re-appoint two peons to attend on the Editor and the rest of the editorial staff and to pay the employees the wages in future on or before the 7th of the month as required; under section 10 (2) of the Standing Orders Ordinance, 1960. These demands can arise in the case of an existing industry only and they do not remain a live issue and abate altogether after the termination of services of the workmen. Respondent No. 1 was not competent to issue any certificate for these demands. In view of this we hold that the second certificate of failure o conciliation proceedings issued by respondent No. 1 on the 21st of December 1963 was without jurisdiction.

30. The learned counsel for the petitioner has also argued before us that at any rate respondents Nos. 3 to 13 ceased to be the "working journalists" within the meaning of the Working Journalists (Conditions of Service) Ordinance (XVI of 1960) with effect from the 3rd of September 1963 and that, therefore, they cannot invoke the provisions of that Ordinance. By virtue of section 3 of that Ordinance, the provisions of the Industrial Disputes Ordinance, 1959, as in force from time to time have been made applicable to or in relation to "Working Journalists" as they apply to or 'in relation to workmen within the meaning of the Industrial Disputes Ordinance. It is, therefore, contended that inasmuch as the respondents Nos. 3 to 13 have ceased to be the "Working Journalists", the provisions of Industrial Disputes Ordinance, 1959, have ceased to be applicable to them. "Working Journalists" has been defined in section 2(f) of the Ordinance as under:- "'Working Journalist means a person who is a whole time Journalist and is employed as such in, or in relation to any newspaper establishment, and includes an Editor, a Leader Writer, News Editor, Sub-Editor, Feature Writer, Reporter, Correspondent, Cartoonist, News Photographer, Calligraphist and . . . . . but does not include person who

(i) is employed mainly in a managerial and administrative capacity, or (ii) being employed in a supervisory capacity, performed, either by the nature of the duties attached to his office, or by reason of the power vested in him: functions mainly of a managerial nature.

31. There is no doubt that respondents Nos. 3 to 13 are whole time Journalists by profession and they were employed as such by the petitioner in the newspaper establishment of the Civil and Military Gazette, Lahore, under the different contracts with them before the termination of their service. Even though the newspaper stopped its publication, yet the respondents Nos. 3 to 13 continued to be the Journalists in the establishment. Their old designations in the establishment were retained by the petitioner even after the 3rd of September 1963. Moreover, on the reasoning discussed above the rights which accrued to the respondents before and at the time of the closure of the newspapers establishment and were intimately connected with it, could be enforced in accordance with the provisions applicable to them at the time of the alleged closure. The petitioner cannot by its unilateral act deprive them of the privileges secured in their favour under law. We see no force in this contention of the learned counsel for the petitioner as well.

32. For the foregoing reasons we declare that the order dated the 21st of December 1963 made by respondent No. 1 by which lie issued tire second certificate of failure of the concilia tion proceedings (Annexure `D') was without lawful authority and of no legal effect and to that extent this writ petition is accepted; but it shall stand dismissed as against the order dated the 19th of October 1963 passed by respondent No. 1 and the authority of, respondent No. 2 to deal with it. In view of the divided success of the parties in this writ petition, we leave them to bear their oven cots." Order accordingly.