P.V. Rajamannar, C.J.
1. This is an appeal from the judgment of Rajagopala Ayyangar, J., in W.P. No. 590 of 1953, filed by the management of Odeon Cinema, Madras, for the issue of a writ of certiorari to quash the order of the Industrial tribunal, Madras, dated 24 October 1952 in industrial dispute No. 23 of 1952, and the order of the Labour Appellate Tribunal of India, in Appeal No. 111-77 of 1952, dated 2 August 1953, confirming the same.
2. By G.O. Ms. No. 3361, Development, dated 4 August 1952, the Government referred for adjudication to the industrial tribunal, Madras, a dispute between the workers of Sagar Talkies and the management of Odeon Cinema, Madras. The facts which led to this reference are briefly as follows:
3. Raja V. Maheswar Rao and Raja V. Rajeswara Rao, two brothers, were the owners of a film theatre called Sagar Talkies. They were exhibiting pictures in the said theatre with a staff of about 27 workers. They leased the theatre and the talkie equipment to Isherdas Snani and Brothers, a Bombay firm. It was apparently contemplated both by the lessors and the lessees that the staff of the Sagar Talkies, who were working under the lessors, would be taken over by the lessees; but nothing about this arrangement was mentioned in the lease deed. A typed list disclosing the names of the members of the staff and the basic pay and dearness allowance drawn by them was handed over by the lessors to a partner of the lessee firm. After the lessees took possession, they named the theatre as Odeon Cinema. When some of the members of the old staff applied for service, the lessees refused to take them on the ground that fresh applications were wanted, as if the applicants were new entrants. On their refusal to submit such applications, they were asked not to enter the premises. Thereupon the secretary of the South Indian Cinema Employees' Association, Madras, drew the attention of the labour officer, Madras, and the lessors and the lessees of the theatre to what had happened, and conciliation proceedings were then started by the labour officer. During these proceedings, the management agreed to take back all the old staff except five of them. The association demanded compensation for the five workers who had not been taken, but this demand was rejected by the management. The labour officer reported failure of settlement to tire Government, and the reference abovementioned was made by the Government at the instance of the South Indian Cinema Employees' Association which contended that the old staff of the Sagar Talkies were entitled to be employed by the management of the Odeon Cinema, that is, the lessees, on the same terms of service as before.
4. Before the tribunal a preliminary objection was taken on behalf of the management of the Odeon Cinema, viz., that there was no industrial dispute within the meaning of that term which could be the subject-matter of a reference. The industrial tribunal overruled this objection on the ground that the Odeon Cinema was only a new name given for the old Sagar Talkies and therefore the fact that the workmen concerned happened to be on the staff of the old Sagar Talkies whereas the employer, the other party to the dispute, happened to be the lessee of the talkies who had chosen to rename it as Odeon Cinema, made no difference. On the merits the industrial tribunal held that the lessees, i.e., the management of the Odeon Cinema, were under an obligation, legally and contractually, to continue the staff of the Sagar Talkies under their old service conditions and such of the employees who had not been taken over by the lessees should be immediately taken into service and paid from the date when the Sagar Talkies was leased to the management of the Odeon Cinema as if the workers continued in employment. There was an award in accordance with these findings and it was duly published in the Fort St. George Gazette.
5. There was an appeal by the management to the Labour Appellate Tribunal of India; but that Tribunal dismissed the appeal, because, in their opinion, no point of law arose for consideration.
6. The writ petition was filed to quash the orders of the industrial tribunal, Madras, and the Labour Appellate Tribunal of India. Rajagopala Ayyangar, J., who heard and disposed of the petition, upheld the preliminary objection which had been raised by the management and held that there was no industrial dispute within the meaning of the Industrial Disputes Act which could have been referred to the tribunal for adjudication and that therefore the tribunal did not have jurisdiction to adjudicate upon the alleged dispute. The learned Judge also held, on the merits, in favour of the management, though in the view which he took regarding the preliminary objection, further contentions relating to the validity of the award would not arise for consideration. But as the point had been argued, he expressed his opinion that the workers could not successfully contend such a continuity of service as would constitute the lessees the successor of the lessors. On these findings, he allowed the writ petition and quashed the order of the industrial tribunal as being without jurisdiction. The workers represented by the South Indian Cinema Employees' Association, Madras, have preferred this appeal.
7. In our opinion, Rajagopala Ayyangar, J, was right in upholding the preliminary objection that the reference was not sustainable. Obviously there should be an industrial dispute before such a dispute is referred for adjudication and an 'industrial dispute,' according to the definition of that term in Section 2(k) of the Industrial Disputes Act, comprises any dispute or difference between the employees and employers, or employers and workmen. 'Workmen' means any persons employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to any industrial dispute, a workman discharged during the dispute, but does not include any person employed in the naval, military and air service of the Government. The question is whether the present case can be brought under the category of a dispute between employer and workmen. A decision of this question depends upon the relationship between the staff of the old Sagar Talkies and the management of the Odeon Cinema. It is clear to us that the staff of the old Sagar Talkies were never employed by the management of the Odeon Cinema. There might have been talks as to what should happen to the old staff, and it may foe that there was also an impression on the part of the old staff and the lessors that the old staff would be taken over by the management of the Odeon Cinema, i.e., the lessees, under their employment. But actually this did not happen. Before a dispute can be said to be a dispute between employers and workmen, the relationship of employers and workmen should be established between the parties. That this is the correct position appears to have been authoritatively laid down by the Supreme Court of India in a recent appeal C.A. No. 85 of 1956, Dhrangadhra Chemical Works v. State of Saurashtra 1957 M.L.J. 1 : 1957 I .L.J. 477. It was held that the essential condition for a person being a workman within the terms of the definition in the Industrial Disputes Act was that he should be in the employment of his employers and that there should be the relationship between the employer and him as between master and servant. It may be that when such a relationship had existed at one time and there was a termination subsequently of that relationship, the person who was once in employment would come within the definition of 'workman.' But when as in this case the persons concerned were never employed by the employer, such persons cannot be deemed to be workmen. At the most, one can spell out a contract to employ the old workers of Sagar Talkies; but a mere contract, by itself, could not bring about the relationship of employer and employee, or employer and workman. We agree with Rajagapala Ayyangar, J., that
the mere existence of a contract to employ does not constitute a relationship of master and servant between the employer and the person who has been promised employment, and, until the contract is performed and the servant is actually employed, the relationship of employer and workman is not constituted.
It follows that the learned Judge was right, in holding that there was no industrial dispute within the meaning of the Industrial Disputes Act which could have been validly referred to a tribunal for adjudication. In the view that we have taken as regards the preliminary objection, it is not necessary to go into the merits though we may indicate our opinion that, even on the merits, we agree with Rajagopala Ayyangar, J.
8. The appeal fails and is dismissed with costs. Advooate's fee Ra. 100.