P.V. Rajamannar, C.J.
1. This is an appeal against the judgment of Balakrishna, Ayyar, J., in W.P. No. 882 of 1952. That was a petition filed by the respondents, Spencer and Co., Ltd., under Article 226 of the Constitution for the issue of a writ to the Labour Appellate Tribunal, Madras, prohibiting it from proceeding with the hearing of an appeal (Appeal-Bombay No. 91 of 1952) in the following circumstances. On 30th May, 1951, a large number of workers of the respondent Company went on strike because the management of the Company would not concede the several demands made on behalf of the workers by the Spencer's Workers' Union. On nth June, 1951, the Union wrote to the management that the, workers had decided to return to work. On the same day the management had written to the Union to say that they would be unable to re-engage persons who reported for work and that when the strike was withdrawn unconditionally, the management would call up various workers in batches. They also put up a notice on the same date to the effect that all workers who had been absent without leave since 30th May, 1951, would be deemed to have voluntarily terminated their employment with the Company and to have lost all lien on their previous employment but if and when the strike was withdrawn unconditionally the Company would call up batches on different dates. Subsequently several workers returned to work and they were allowed to continue in their former employment. As the Company had during the period between 30th May and 12th June engaged a number of new persons in place of those who had gone on strike, the Company did not absorb all the strikers who wanted to return to work. By an order dated 3rd November, 1951, the Government referred the following two questions for adjudication of the Industrial Tribunal, Madras, namely:
(1) Whether the non-absorption of workers who participated in the strike which commenced on 30th May, 1951, is justified, and, if not, what relief will they be entitled to? and
(2) Whether the ex-employees who have been re-employed after the strike should have continuity of service?
2. We are not concerned with the second question in this appeal. On the first question the Industrial Tribunal decided that the strike was not justified and was not occasioned by any unfair labour practice on the part of the management and that therefore the non-absorption of such of the workers who participated in the strike and whose places had been properly filled by the management between 30th May, 1951 and nth June, 1951, and such of the workers whose places had been retrenched is justified, that the others whose places had been improperly filled up by the management subsequent to 12th June, 1951, when they were ready to go back to work if there was no imposition of any conditions is not, however, justified, and that therefore these latter workers should have to be absorbed with half the arrear of salaries and dearness allowance due to them from the date from which they were so ready to go back to work or from 1st July, 1951, whichever is later, after making due allowance for the period necessary for the management to make the proper regulation for work after its dislocation. Against the decision of the Industrial Tribunal an appeal was taken by the Union. The management took a preliminary objection that the appeal was not competent. But the objection was overruled by the Appellate Tribunal. Thereupon the respondent-Company filed the petition out of which this appeal arises for a writ of prohibition directing that the Appellate Tribunal should not proceed with the hearing of the appeal.
3. Before the Appellate Tribunal several grounds were taken on behalf o the Workers' Union. Balakrishna Ayyar, J., before whom the petition came on for hearing, held that certain of these grounds fell within the scope of the provisions of the Indistrial Disputes (Appellate Tribunal) Act, 1950, which defines the appellate jurisdiction of the Tribunal. But he held that some of the grounds raised pure questions of fact and they could not form the subject-matter of an appeal. Such questions were those which arose out of the following findings of the Industrial Tribunal, namely.
(1) The management had not been guilty of any unfair labour practice to the date of the striks and that the strike was not justified.
(2) The new hands who were entertained to fill the place of the strikers were offered permanent employment in the sense that their services would be continued even after the strike was over.
(3) The non-absorption of such of the workers who participated in the strike and whose place had been properly filled up by the management between 30th May, 1951 and nth June, 1951 and also of those workers whose places had been retrenched was justified.
4. It is against this decision of Balakrishna Ayyar, J., that the present appeal has been filed.
5. The jurisdiction of the Appellate Tribunal is thus defined by Section 7 of the Industrial Dispute (Appellate Tribunal) Act, 1950:
Section 7(1) : Subject to the provisions of this section, an appeal shall lie to the Appellate-Tribunal from any award or decision of an industrial tribunal if-
(a) the appeal involves any substantial question of law; or
(b) the award or decision is in respect of the following matters, namely:
(ii) bonus or travelling alowance,
(iii) any contribution paid or payable by the employer to any pension fund or provident fund,
(iv) any sum paid or payable to, or on behalf of, the workman to defray special expenses entailed on him by the nature of his employment,
(v) gratuity payable on discharge,
(vi) classification by grades,
(vii) retrenchment of workmen;
(viii) any other matter which may be prescribed.
6. The contention on behalf of the appellants was that the questions relating, to the above three findings were substantial questions of law and therefore the appeal was competent, as the requirement of Clause (a) was satisfied. The learned Counsel for the appellants did not seek to bring these matters in dispute under any of the other heads enumerated in Clauses (b).
7. Learned Counsel for the appellants conceded that the first finding, namely, that the strike was not justified because the management had not been guilty of any unfair labour practice was a finding of fact and did not involve any questions of law. But he contended that the question whether the management was justified in not absorbing such of the workers who participated in the strike and whose places had been filled up between 30th May, 1951 and 11th June, 1951, was a substantial question of law. How under given circumstances a refusal on the part of the management to employ persons who had gone on strike was justified or not can be a question of law we find it difficult to follow. There are provisions in the Industrial Disputes Act which lay down when a strike is illegal. There are no provisions laying down when a strike can be deemed to be justified. There is no indication whatever as to what is to happen when a strike is called off. Learned Counsel for the appellants could not draw our attention to any statutory rule concerning the rights, of the workers who had gone on strike and who subsequently were willing to resume work. Each case must depend upon the particular facts of that case. It is entirely within the province of the Industrial Tribunal to decide whether the action of the management was or was not justified in the sense that their action was or was not fair and equitable. Appellant's counsel, however, urged that there were certain principles which had been well settled in the United States which are set out by Teller in his book on 'Labour Disputes and Collective Bargaining, (Vol. II, Section 318) and the correct application of those principles to the facts of a particular case would involve a substantial question of law. Now it is clear that the principles followed in practice in the United States, though they may substantially help the Industrial Tribunal to come to a fair and equitable decision, are not binding on the Tribunal and cannot have the status of statutory provisions in this country so that it can be said that a failure to apply those principles would render the decision of the Industrial Tribunal illegal. We are of opinion that the question whether on particular facts and in particular circumstances the action of the management was or was not justified in the sense that it was or was not fair and equitable is not a question of law, still less a substantial question of law.
8. There is one aspect of this question which, however, can be said to be a question of law. The appellant's counsel contended that a worker while on strike does not ipso facto cease to be an employee and consequently there is no automatic vacancy which can be permanently filled up by the management. Mr. O.T.G. Nambiar, learned Counsel for the respondent-Company, conceded this legal position, namely, that a strike as such does not put an end to the legal relationship of employer and employee unless of course consequent on the strike the employer purports to dismiss the worker on strike. That has not happened in this case. But Mr. Nambiar contends that, even so, the only remedy of the workmen not employed after the strike had been called off is by way of damages. We do not propose to decide this question but we are satisfied that this question is certainly a question of law which the Appellate Tribunal will have to decide. The decision of this question does not depend upon the facts of the case. In any event the facts material for deciding this question are beyond dispute in this case. This limited question, which we hold is a substantial question of law, the Appellate Tribunal will have jurisdiction to decide. We therefore modify the order of Balakrishna Ayyar, J., by declaring that the Appellate Tribunal would have jurisdiction to decide the question whether a management in law is entitled to fill up the places of the workers who had participated in the strike without terminating their employment in such manner as is allowed by law. Otherwise this appeal will stand dismissed. No order as to costs.