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TMI Blog1978 (2) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... what was considered in England a somewhat unorthodox method of construction in Seaford Court Estates Ltd. v. Asher([1949] 2 All. E. R. 15 5 at 164), where Lord Denning, L.J., said : "When a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases". When this case went up to the House of Lords it appears that the Law Lords disapproved of the bold effort of Lord Denning to make ambiguous legislation more comprehensible. Lord Simonds found it to be "a naked usurpation of the legislative function under the thin disguise of interpretation'. Lord Morton (with whom Lord Goddard entirely agreed) observed : "These heroics are out of place" and Lord Tucker, sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meaning of what could be described as a basic "structure" of the Constitution must necessarily be found in express provisions of the construction and not merely in subjective notions about meanings of words. Similar must be the reasoning we must employ in extracting the core of meaning hidden between the interstices of statutory provisions. Each of us is likely to have a subjective notion about "industry". For objectivity, we have to look first to the, words used in the statutory provision defining industry in an attempt to find the meaning. If that meaning is clear, we need proceed no further. But, the trouble here is that the words found there do not yield a meaning so readily. They refer to what employers or workers may do as parts of their ordinary avocation or business in life. When we turn to the meaning given of the term "worker" in Sec. 2(s) of the Act, we are once more driven back to find it in the bosom of "industry", for the term "worker" is defined as one : " employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied,, and for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erpreted as a whole, in the context of all the provisions of the statute, its objects, the preamble, and the functions of various provisions, the true meaning may emerge. It may not be strictly adictionary meaning in such cases. Indeed, even in a modern statute the meaning of a term such as "Industry" may change with a rapidly changed social and economic structure. For this proposition I can do no better than to quote Subba Rao J. speaking for this Court in The Senior Electric Inspector v. Laxmi Narayan Chopra ([1962] 3 S.C.R. 146) "The legal position may be summarized thus : The maxim contemporanea expositio as laid down by Coke was applied to construing ancient statutes but not to interpreting Acts which are comparatively modern. There is a good reason for this change in the mode of interpretation. The fundamental rule of construction is the same whether the Court is asked to construe a provision of an ancient statute or that of a modem one, namely, what is the expressed intention of the Legislature. It is perhaps difficult to attribute to a legislative body functioning in a static society that its intention was couched in terms of considerable breadth so as to take within its sw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long title shows that the object of the Act is "to make provision for the investigation and settlement of industrial disputes, and for certain other purposes." The preamble states the same object and s. 2 of the Act which contains definitions states that unless there is anything repugnant in the subject or context, certain expressions will have certain meanings." Thus, it is in the context of the purpose of the Act that the meaning of the term 'industry' was sought. Again dealing with the objects of the Act before us in Budge Municipality case([1953] S.C.R. 302 at 310) this Court said : "When our Act came to be passed, labour disputes had already assumed big proportions and there were clashes between workmen and employers in several instances. We can assume that it was to meet such a situation that the Act was enacted, and it is consequently necessary to give the terms employed in the Act referring to such disputes as wide an import as reasonably possible." In that very case this Court also said (at p. 308) : "There is nothing, however, to prevent a statute from giving the word "industry" and the words "industrial dispute" a wider and more comprehensive impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessarily postulates employees without whom there can be no employers. But, the second part of the definition makes " the concept more nebulous as it, obviously, extends the definition to any calling, service, employment, handicraft or industrial occupation or avocation of workmen". I have already examined the meaning of the term " workman" which refers us back to what is an "industry". it seems to me that the second part, relating to workmen, must necessarily indicate something which may exclude employers and include an "industry It consisting of individual handicraftsmen or workmen only. At any rate, the meaning of industrial disputes includes disputes between workmen and workmen also. Therefore, I cannot see how we can cut down the wide ambit of last part of the definition by searching for the predominant meaning in the first part unless we were determined, at the outset, to curtail the scope of the second part somehow. If we do that, we will be deliberately cutting down the real sweep of the last part. Neither "Noscitur a sociis" rule nor the " ejusdem generis" rule are adequate for such a case. There is wisdom in the suggestion that in view of these difficulties in finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyers and their workmen or between workmen and workmen, it should be considered an area within the sphere of 'industry' but not otherwise In other words, the nature of the activity will lie determined by the conditions which give rise to the likelihood of occurrence of such disputes and their actual occurrence in the sphere. This may be a pragmatic test. For example, a lawyer or a solicitor could not raise a dispute with his litigants in general on the footing that they were his employers. Nor could doctors raise disputes with their patients on such a footing. Again, the personal character of the relationship between a doctor and his assistant and a lawyer and his clerk may be of such a kind that it requires complete confidence and harmony in the productive activity in which they may be cooperating so that, unless the operations of the solicitor or the lawyer or the doctor take an organised and systematised form of a business or trade, employing a number of persons, in which disputes could arise between employers and their employees, they would not enter the field of industry. The same type of activity may have both industrial and non-industrial aspects or sectors. I would also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. Therefore, I have really no time to discuss the large number of cases cited before us, including those on what are known as "sovereign" functions. I will, however, quote a passage from State of Rajasthan v. Mst. Vidyawati Anr.( [1962] Supp. 2 S.C.R. 989 at 1002) where this Court said : "In this connection it has to be remembered that under the Constitution we have established a welfare state, whose functions are not confined only to maintaining law and order but extend to engaging in all activities including industry, public transport, state trading, to name only a few of them. In so far as the State activities have such wide ramifications involving not only the use of sovereign powers but also its powers as employers in so many public sectors, it is too much to claim that the State should be immune from the consequences of tortious acts of its employees committed in the course of their employment as such." I may also quote another passage from Rajasthan State Electricity Board v. Mohan Lal ([1967] (3) SCR 377 at 385) to show that the State today increasingly undertakes commercial functions and economic activities and services, as part of its duties in a welfare state. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hy have the genius to inject mystique into common words, alienating the laity in effect from the rule of law. What is the common worker or ordinary employer to do if he is bewildered by a definitional dilemma, and is unsure whether his. enterprise say, a hospital, university, a library, a service club, a local body, a research institute, a pinjarapole, a chamber of commerce, a Gandhi Ashram-is an industry at all ? Natural meaning is nervous of acceptance in court where the meaning of meanings is lost in uncertain erudition and cases have even cancelled each other out while reading meaning. "I do not think" said Diplock L.J., that anywhere, except in a court of law, it would be argued with gravity that a Dutch barn or grain and fodder stores or any ordinary farm buildings are properly described as repositories. A Gloucester shire farmers would say they were farm buildings and would laugh at their being called 'repositories." in the same spirit, Stamp J. rejected the argument that the carrying on of the business of a crematorium involved the " subjection of goods or materials to any process" within section 271 (1) (c) of the Income Tax Act 1952 as a distortion of the Engli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have led to an avoidable glut of labour litigation where speedy finality and working criteria are most desirable. And this delay in disposal of thousands of, disputes and consequent partial paralysis in the industrial life is partly blamable on the absence of a mechanism of communication between the court and the lawmaking chambers. The great American judge, Justice Cardozo, while he was Chief Justice of New York Supreme Court., made this point: "The Courts are not helped as they could and ought to be in the adaptation of law to justice. The reason they are not helped is because there is no one whose business it is to give warning that help is needed. .. . . . . We must have a courier who will carry the tidings of distress........ Today courts and legislative work in separation and aloofness. The penalty is paid both in the wasted effort of production and in the lowered quality of the product. On the one side, the judges, left to fight against anachronism and injustice by the methods of judge-made law, are distracted by the conflicting promptings of justice and logic, of consistency and mercy, and the output of their labors bears the tokens of the strain. On the other side, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretation and reinterpretation, with a murky accumulation of case law. Counsel on both sides have chosen to rely on Safdar Jung each emphasising one part or other of the decision as supporting his argument. Rulings of thisCourt before and after have revealed no unanimity nor struck any unison and so, we confess to our inability to discern any golden thread running through the string of decisions bearing on the issue at hand." ".... the chance of confusion from the crop of cases in an area where the common man has to understand and apply the law makes it desirable that there should be a comprehensive, clear and conclusive declaration as to what is an industry under the Industrial Disputes Act as it now stands. Therefore, we think it necessary to place this case before the learned Chief Justice for consideration by a larger Bench. If in the meantime the Parliament does not act, this Court may have to illumine the twilight area of law and help the industrial community carry on smoothly So, the long and short of it is, what is an industry? Section 2 (j) defines it : "industry' means any business, trade, undertaking, manufacture or calling of employers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be torn off the words whose company it keeps. If birds of a feather flock together and noscitur a sociis is a commonsense guide to construction, 'undertaking' must be read down to conform to the restrictive characteristic shared by the society of words before and after. Nobody will torture 'undertaking in Section 2(j) to mean meditation or musheira which are spiritual and aesthetic undertakings. Wide meanings must fall in line and discordance must be excluded from a sound system. From Banerjee to Safdar Jung and beyond, this limited criterion has passed muster and we see no reason, after all the marathon of argument, to shift from this position. Likewise, an 'industry' cannot exist without co-operative endeavyour between employer and employee. No employer, no industry; no employee, no industry-not as a dogmatic proposition in economics but as an articulate major premise of the definition and the schema of the Act, and as a necessary postulate of industrial disputes and statutory resolution thereof. An industry is not a futility but geared to utilities in which the community has concern. And in this mundane world where law lives, now, economic utilities-material goods and serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve-nots, and naive, fugitive and illogical cut-backs on the import of 'industry' may do injustice to the benignant enactment. Avoiding Scylla and Charybdis we proceed to decipher the fuller import of the definition. To sum up, the personality of the whole statute, be it remembered, has a welfare basis, it being a beneficial legislation which protects Labour, promotes their contentment and regulates situations of crisis and tension where production may be imperiled by untenable strikes and blackmail lock-outs. The mechanism of the Act is geared to conferment of regulated benefits to workmen and resolution, according to a sympathetic rule of law, of the conflicts, actual or potential, between managements and workmen. Its goal is amelioration of the conditions of workers, tempered by a practical sense of peaceful co-existence, to the benefit of both-not a neutral position but restraints on laissez faire and concern for the welfare of the weaker lot. Empathy with the statute is necessary to understand not merely its spirit but also its sense. One of the vital concepts on which the whole statute is built, is 'industry' and when we approach the definition in Section 2 (j), we must be inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be treated as the mariner's compass for judicial navigation B. N. Banerji v. R. P. Mukherjee Others (1954) S.C.R. 302)But before setting sail. let us map out briefly the range of dispute around the definition. 'Lord Denning in Automobile Proprietary Ltd. observed :- "It is true that 'the industry' is defined; but a definition is not to be read in isolation. It must be read in the context of the phrase which it defines, realising that the function of a definition is to give precision and certainty to a word or phrase which would otherwise be vague and uncertainbut not to contradict it or supplant it altogether." Hotel and Catering Industry Training Board v. Automobile Proprietary Ltd. (1968) 1 W.L.R. 1526 at 1530. A definition is ordinarily the crystallisation of a legal concept promoting precision and rounding off blurred edges but, alas, the definition in S2(j), viewed in retrospect, has achieved the opposite. Even so, we must try to clarify. Sometimes active interrogatories tell better than bland affirmatives and so marginal omissions notwithstanding, we will string the points together in a few questions on which we have been addressed. A cynical jurist surveying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isations (like the Y.M.C.A.) whose general emphasis is not on profit-making but fellowship and self-service, fit into the definitional circle ? (e) To go to the core of the matter, is it an inalienable ingredient of 'industry' that it should be plied with a commercial object ? 2. (a) Should co-operation between employer and employee be direct in so far as it relates to the basic service or essential manufacture which is the output of the undertaking ? (b) Could a lawyer's chambers or chartered accountant's office, a doctor's clinic or other liberal profession's occupation or calling be designated an industry ? (c) Would a University or college or school or research institute be called an industry ? 3. (a)Is the inclusive part of the definition in Sec. 2(j) relevant to the determination of an industry ? If so, what impact does it make on the categories ? (b) Do domestic service drudges who slave without respite-become 'industries' by this extended sense ? 4. Are governmental functions, stricto sensu, industrial and if not, what is the extent of the immunity of instrumentalities of government ? 5. What rational criterion exists for a cut-back on the dynamic potential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciples gatherable therefrom, rejecting erratic excursions. To sip every flower and change every hour is not realism but romance which must not enchant the court. Indeed, Sri Justice Chandrasekhara Iyer, speaking for a unanimous Bench, has sketched the guidelines perceptively, if we may say so respectfully. Later cases have only added their glosses, not overruled it and the fertile source of conflict has been the bashyams rather than the basic decision. Therefore, our task is not to supplant the ratio of Banerji but to straighten and strengthen it in its application, away from different deviations and aberrations. Banerji. The Budge Budge Municipality dismissed two employees whose dispute was sponsored by the Union. The award of the Industrial Tribunal directed reinstatement but the Municipality challenged the award before the High Court and this Court on the fundamental ground that a municipality in discharging its normal duties connected with local selfgovernment is not engaged in any industry as defined in the Act. A panoramic view of the statute and its jurisprudential bearings has been projected there and the essentials of an industry decocted. The definitions of employer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liation and settlement than a determination of the respective rights and liabilities according to strict legal procedure and principles. The conflicts between capital and labour have now to be determined more from the standpoint of status than of contract. Without such an approach, the numerous problems that now arise for solution in the shape of industrial disputes cannot be tackled satisfactorily and this is why every civilised government has thought of the machinery of conciliation officers, Boards and Tribunals for the effective settlement of dispute." (emphasis added) The dynamics of industrial law, even if incongruous with popular understanding, is this first proposition we derive from Banerji : "Legislation had to keep pace with the march of times and to provide for new situations. Social evolution is a process of constant growth, and the State cannot afford to standstill without taking adequate measure by means of legislation to solve large and momentous problems that arise in the industrial field from day to day almost." The second,, though trite, guidance that we get is that we should not be beguiled by similar words in dissimilar statutes, contexts, subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment this 'work has in almost every country been assigned as a duty to local bodies like our Municipalities or District Boards or Local Boards. A dispute in these services between employers and workmen is an industrial dispute, and the proviso to section 10 lays down that where such a dispute arises and a notice under section 22 has been given, the appropriate Government shall make a reference under the sub-section. If the public utility service is carried on by a corporation like a Municipality which is the creature of a state, and which functions under the limitations imposed by the statute, does it cease to be an industry for this reason ? The only ground on which one could say that what would amount to the carrying on of an industry if it is done by a private person ceases to be so if the same work, is carried on by a local body like a Municipality is that in the letter there is nothing like the investment of any capital or the existence of a profit earning motive as there generally is in a business. But neither the one nor the other seems a sine qua non or necessary element In the modern conception of industry? ,(emphasis added) Absence of capital does not negative 'indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the operation of the Industrial Courts Act the activities of local authorities, even without taking into account the fact that these authorities now carry on portent industrial undertakings. The order expressly its definition section that 'trade or performance of, its functions by a It is true that these words are used in Part III, which deals with 'recognized terms and conditions of employment, and in Part TV, which deals with 'departures from trade. practices' in 'any industry or undertaking' and not in Part 1, which deals with 'national arbitration' and is the part material in this case, but I take them as illustrating what modern conditions involve-the idea that the functions of local authorities may come under the expression 'trade or industry'. I think the same may be said of the Industrial Courts Act and of Reg. 58-AA, in both of which the word 'trade' is used in the very wide connotation which it bears in the modern legislation dealing with conditions of employment, particularly in relation to matters of collective bargaining and the like". (emphasis added) In short, trade' embraces functions of local authorities, even professions, thus departing from popular notions. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith special reference to the Act, a few positive facets and knocks down a few negative fixations. Governments and municipal and statutory bodies may run enterprises which do not for that reason cease to be industries. Charitable activities may also be industries. Undertakings, sans profit motive, may well be industries. Professions and not ipso facto out of the pale of industries. Any operation carried on in a manner analogous to trade or business may legitimately be statutory 'industry. The popular limitations on the concept of industry do not amputate the ambit of legislative generosity in Sec.2(j). Industrial peace and the smooth supply to the community are among the aims and objects the Legislature had in view, as also the nature, variety range and areas of disputes between employers and employees. These factors must inform the construction of the provision. The limiting role of Banerji must also be noticed so that a total view is gained. For instance, 'analogous to trade or business' cuts ,down 'undertaking, a word of fantastic sweep. Spiritual undertakings, casual undertakings, domestic undertakings, war waging, policing, justicing, legislating, tax collecting and the like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs is instructive For instance, consider the promptings of profit as a condition of industry. higgins j. crushes that credo thus: "The purpose of profit-making can hardly be the criterion. If it were the labourers who excavated the underground passage for the Duke of Portland's whim, or the labourers who build (for pay) a tower of Babel or a pyramind, could not beparties to an 'industrial dispute'. The worker-oriented perspective is underscored by Isaacs and Rich JJ. It is at the same time as is perceived, contended on the part of labour, that matters even indirectly prejudicially affecting the ,Workers are, within the sphere of dispute. For, instance, at P. 70 (par. 175(4) (a), one of the competing contentions is thus stated, : "Long, hours proceed from the competition of employer with employer in the same trade Employers ought to be prevented from competing in this way at the expense. of. their workmen." (emphasis added) As a fact, in a later year, Lord lamps of Hereford, in an award, held that one employer in a certain trade must confirm to the the practice, of others. What must be borne,, steadily in mind, as evidenced by the nature of the claims made, is that the about of obta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional government. No government no order; no order; no law no rule of law ,no industrial relations. So core functions of the State are paramount and paramountcy is paramountcy. but this doctrinal exemption is not expansionist but strictly narrowed of necessitous functions. Isaacs and Rich JJ . dwell on this topic and after quoting Lord Watson's test of inalienable functions of a Constitutional government state: "Here we have the discrimen of Crown exemption. If a municipality either [(1997) 1 Q,B. at pp. 70-71] is, legally empowered to perform and does perform any function whatever the Crown, or (1997) 1 Q.B., at p. 71 is lawfully empowered to perform and does perform any function which constitutionally is inalienably a Crown function as, for instance the administration of justice the municipality is in law, presumed to represent the Crown and the exemption applies, Otherwise, it is outside that exemption, and if impliedly exempted at all, some other principle must be resorted to. The making and maintenance of streets in the municipality is not within either proposition". (Italics supplied). Now, the cornerstone of industrial law is well laid by Bannerji, supported by Lord May ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motive, of service to the community etc., as implied, inarticulately in the concept of 'industry', we bypass them as but marginally persuasive. The rulings of this Court, the language and scheme of the Act and the well-known canons of construction exert real pressure on our judgment. And, in this latter process, next to Banerji comes Corporation of Nagpur which spreads the canvas wide and illumines the expression 'analogous to trade or business', although it comes a few days after Hospital Mazdoor Sabha decided by the same Bench. To be sure of our approach on a wider basis let us cast a glance at internationally recognised concepts vis-a-vis industry. The International Labour Organisation has had occasion to consider, freedom of association for labour as a primary right and collective bargaining followed by strikes, if necessary, as a derivative right. The question has arisen as to whether public servants employed in the crucial functions of the government fall outside the orbit of industrial conflict. Convention No. 98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, in Article 6 states "This Convention does not deal with the pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, para. 81; 143rd Report, Case No. 764, para. 87. 254. With regard to a complaint concerning the right of teachers to engage in collective bargaining, the Committees, in the light of the principles contained in Convention No. 98 ,drew attention to the desirability of promoting voluntary collective bargaining, according to national conditions, with a view to the regulation of terms and conditions of employment. 118th Report, Case No. 573, para. 194. 255. The Committee has pointed out that Convention No. 98, dealing with the promotion of collective bargaining, covers all public servants who do not act as agents of the public authority and consequently among these, employers of the, postal and telecommunications services. 139th Report, Case No. 725, para. 278. 256. Civil aviation technicians working under the jurisdictionof the armed forces cannot be considered, in view of the nature of their activities, as belonging to the armed forces and as such liable to be excluded from the guarantees laid. down,, in Convention No. 9 8; the rule contained in Article 4 of the convention concerning collective bargainings should be applied. to them. 116th Report, Case No. 598, paras. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effort in the service of the community. The history of labour legislation both in England and India also shows that it was aimed more of ameliorate the conditions of service of the labour in organised activities than to any thing else. The act was not intended to reach the personal service which do not depend upon the employment of a labour force. Whether the exclusion of personal services is warranted may be examined a little later. The, Court proceeded to carve out the negative factor which, notwithstanding the literal width of the language of the definition, must, for other competing reasons, be kept out of the scope of industry For instance, sovereign functions of the State cannot be included although what such functions are has been aptly termed 'the primary and inalienable functions of a constitutional government'. Even here we may point out the inaptitude of, relying on the doctrine of regal powers, That has reference in this context to, the Crown's liability in tort and has nothing to do with Industrial Law, In any case it is open to Parliament to make law which governs the State's relations with its employees. Articles 309 to, 311 of the Constitution of India, the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he material question is : What is the nature of , the actual function assumed-is it a service that the State could have left to private enterprise, and, if so, fulfilled, could such a dispute be 'industrial' ?". Thus the nature of actual function and of the pattern of organised ,activity is decisive. We will revert to this aspect a little later. It is useful to remember that the Court rejected the test attempted by counsel in the case : "It is said that unless there is a quid pro quo for the service it cannot be an industry. This is the same argument, namely, that the service must be in the nature of trade in a different garb" We agree with this observation and with the further observation that there is no merit in the plea that unless the public who are benefited by the services pay in cash, the services so rendered cannot be industry. Indeed, the signal service rendered by the Corporation of Nagpur is to dispel the idea of profit-making. Relying on Australian cases which held that profit-making may be important from the income tax point of view but irrelevant from an industrial dispute point of view, the Court approved of a critical passage in the dissenting ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yers and employed engaged in the avocation of education, regardless of the wealth derived by the employers from the joint co-operation. The contention sounds like an echo from the dark ages of industry and political economy. It not merely ignores the constant currents of life around us, which is the real danger in deciding questions of this nature, but it also forgets the memorable industrial organization of the nations, not for the production or distribution, of material wealth, but for services, national service as the service of organized industry must always be. Examination of this contention will not only completely dissipate it, but will also serve to, throw material light on the question in hand generally the contention is radically unsound for two great reasons. It erroneously thereby unduly limits the meaning of the terms "production" conceives the object of national industrial organization and "wealth when used in that connection. But it further neglects the fundamental character of "industrial disputes" as a distinct and insistent phenomenon of modern society. Such disputes are not simply a claim to share the material wealth jointly produced and-capable of registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he wealth of a nation-and it is obscurantist to object to it-educational services are Wealth, are 'industrial'. We agree with Isaacs J. More closely analysed, We may ask ourselves, as Isaacs J. did, whether, if private scholastic establishments 'carried 'on reaching on the same lines as the State schools, giving elementary education free, and charging fees for the higher subjects, providing the same curriculum and so on, by means of employed teachers, would such dispute as we have here be an industrial dispute ?.................. I have already indicated my view", says Isaacs J. "that education so provided constitutes in itself an independent industrial operation as a service rendered to the community. Charles Dickens evidently thought so When ninety years ago Squeers called his school "the shop" and prided himself on Nickleby's being "cheap" at pound 5 a year and commensurate living conditions. The world has not turned back since then. In 1926 the Committee on Industry and Trade in their report to the British Prime Minister, included among "Trade Unions" those called "teaching." It there appears that in 1897 there were six unions with a total membership of 45,319 and in 1924 there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. This department satisfies the other tests. The employees of this department coming under the definition of "employees" under the Act would certainly be entitled to the benefits of the Act." The substantial break-through achieved by this decision in laying bare the fundamentals of 'industry' in its wider sense deserves mention. The ruling tests are clear. 1. The 'analogous' species of quasitrade qualify for becoming 'industry' if the nature of the organized activity implicit in a trade or business is shared by them. (See p. 960. the entire organisational activity). It is not necessary to 'equate the other activities with trade or business'. The pith and substance of the matter is that the structural, organisational engineering aspect, the crucial industrial relations like wages, leave and other service conditions as well as characteristic business methods (not motives) in running the enterprise, govern the conclusion. Presence of profit motive is expressly negated as a criterion. Even the quid pro quo theory which is the same monetary object in a milder version-has been dismissed. The subtle distinction, drawn in lovely lines and pressed with emphatic effect by Sri Tarkunde, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat service, whether financial, administrative or executive, would be entitled to the benefits of the Act (6) If a department of a municipality discharged many functions, some pertaining to industry as defined in the Act and other nonindustrial activities, the predominant functions of the department shall be the criterion for the purpose of the Act." By these tokens, which find assent from us, the tax department of the local body is 'industry'. The reason is this. "The scheme of the Corporation Act is that taxes and fees are collected in order to enable the municipality to discharge its statutory functions. If the functions so discharged are wholly or predominantly covered by definition of "industry", it would be illogical to exclude the tax department from the definition. While in the case of private individuals or firms services are paid in cash or otherwise, in the case of public institutions, as the services are rendered to the public, the taxes collected from them constitute a fund for performing those services. As most of the services rendered by the municipality come under the definition of "industry", we, ,should hold that the employees of the tax department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... performed by private individuals. The provisions of the Corporation Act and the byelaws prescribe certain specifications for submission of plans and for the sanction of the authorities concerned before the building is put up. The same thing can be done by a co-operative society or a private individual. Co-operative societies and private individuals can allot lands for building houses in accordance with the conditions prescribed by law in this regard. The services of this department are therefore analogous to those of a private individual with the difference that one has the statutory sanction behind it and the other is governed by terms of contracts." Be it noted that even co-operatives are covered by the learned Judge although we may deal with that matter a little later. The same Bench decided both Corporation of Nagpur and Hospital Mazdoor Sabha. This latter case may be briefly considered now. It repels the profit motive and quid pro quo theory as having any hearing on the question. The wider import of Sec. 2(j) is accepted but it eXpelS essential 'sovereign activities from its' scope. It is necessary to note that the hospital concerned in that case was run by Government f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowledge on the subject and they should not ignore the constant currents of life around them for otherwise it would introduce a serious infirmity in their approach. Dealing with the general characteristics of industrial enterprise the learned Judge observed that they contribute more or less to the general welfare of the community." p. 883) A conspectus of the clauses has induced Gajendragadkar J. to take note of the impact of provisions regarding public utility service also : "if the object and scope of the statute are considered there would be no difficulty in holding that the relevant words of wide import have been deliberately used by the Legislature in defining "industry" in Sec. 2(j). The object of the Act was to make provision for the investigation and settlement of industrial disputes, and the extent and scope of its provisions would be realised if we bear in mind the definition of "industrial dispute" given by Sec. 2(k), of " wages" by Sec. 2(rr), "workman" by S. 2(s), and of "employer" by s. 2(g). Besides, the definition of a public utility service prescribed by S. 2(m) is very significant. One has merely to glance at the six categories of public utility servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and all callings would come within the purview of the definition; even service rendered by a servant purely in a personal or domestic matter or even in a casual way would fall within the definition. It is not and cannot be suggested that in its wide sweep the, word "service" is intended to include service howsoever rendered in whatsoever capacity and for whatsoever reason. We must, therefore, consider where the line should be drawn and what limitations can and should be reasonably implied in interpreting the wide words used in s. 2(j); and that no doubt is a somewhat difficult problem to decide."(p.876) What is a 'fair and just manner' ? It must be founded on grounds Justifiable by principle derived from the statute if it is not to be sublimation of subjective phobia, rationalization of interests or judicialisation of nonjuristic negatives. And this bunch, in our respectful view, has been proved true not by positive pronouncement in the case but by two points suggested but left open. One relates to education and the other to professions. We will deal with them in due course. Liberal Professions When the delimiting line is drawn to whittle down a wide definition, a principled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... road and general way, it is not easy to conceive that a liberal profession like that of an attorney could have been intended by the Legislature to fall within the definition of "industry" under s. 2(j). The very concept of the liberal professions has its own special and distinctive features which do not readily permit the inclusion of the liberal professions into the four corners of industrial law. The essential basis of an industrial dispute is that it is a dispute arising between capital and labour in enterprises where capital and labour combine to produce commodities or to render service. This essential basis would be absent in the case of liberal professions. A person following a liberal profession does not carry on his profession of his employees and the principal, if not the sole, capital which he brings into his profession is his special or peculiar intellectual and educational equipment. That is why on broad and general considerations which cannot be ignored, a liberal profession like that of an attorney" must, we think, be deemed to be outside the definition of 'industry" under section 2(j)". pp. 167-168 Let us examine these two tests. In the sophisticated, subtle, compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om or merely polishes door handles. The fact of employment as envisaged in the second part is enough provided there is an industry and the employee is a workman. The learned professions are not industry not because there is absence of such partnership but because viewed from the angle of the employer's occupation, they do not satisfy the test." Although Gajendragadkar J. in Solicitor's case and Hidayatullah, J. in Gymkhana case agreed that the learned professions must be excluded, on the question of direct or effective contribution in partnership, they flatly contradicted each other. The reasoning on this part of the case which has been articulated in the Gymkhana Club Employees Union (supra) appeals to us. There is no need for insistence upon the, principle of partnership, the doctrine of direct nexus or the contribution of values by employees. Every employee in a professional office, ,be he a paralegal assistant or full-fledged professional employee or, down the ladder, a mere sweeper or janitor, every-one makes for the success of the office, even the mali who collects flowers and places a beautiful bunch in. a vase on the table spreading fragrance and pleasantness around. The fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, also the convention that in many professional dealings the matter of the fee was never openly talked about, which could be very convenient, since it precluded the client or patient from arguing about whatever sum his advisor might eventually indicate as a fitting honorarium (1966, p. 37). The established professions-the law, medicine, and the clergy-held (or continued to hold) estate Eke positions The three 'liberal professions' of the 'eighteenth century were the nucleus about which the professional class of the nineteenth century was to form. We have seen that they were united by the bond of classical education; that their broad and ill-defined functions covered much that later would crystallise out into now, specialised, occupations; that each, ultimately, derived much of its standing with the established order in the State.... (1966, p. 23)" In the United States, professional associations are guilds in modern dress. ,Modern professional associations are organizational counterparts of the guilds, They are occupational self-interest organisations. In as much as the professions still perform custom work and exercise a monopoly of training and skill, the guild analogy is plau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auditor and company secretary has not been Pressured to break with morals by big business ? Our listening posts are raw life. The Indian Bar and Medicine have a high social ethic upto now. Even so, Dabolkar(1) cannot be ignored as freak or recondite. Doctors have been criticised for unsocial conduct. The halo conjured up in the Solicitor's case hardly serves to 'de-industrailise' the professions. After all, it is not infra dig for lawyers, doctors, engineers, architects, auditors, company secretaries or other professionals to regard themselves as workers in their own sphere or employers or suppliers of specialised service to society. Even justicing is service and, but for the exclusion from industry on the score of sovereign functions, might qualify for being regarded as 'industry'. The plea of 'profession' is irrelevant for the industrial law except as expression of an anathema. No legal principle supports it. Speaking generally, the editors of the book Professions for the People earlier mentioned state : "Jethro K. Lisberman (1970, p. 3) warns : "Professionals are dividing the world into spheres, of influence and erecting large signs saying "experts at work here, do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant. Let us look at a surgery or walk into a realtor's firm. What physician or surgeon will not kill if an attendant errs or clerk enters wrong or dispenses deadly dose? One such disaster somewhere in the assembly line operations and the clientele will be scared despite the doctor's distilled skill. The lawyer is no better and just cannot function without the specialised supportive tools of paraprofessionals like secretaries, librarians, and law-knowing steno-typists or even the messengers and telephone girls. The mystique of professionalism easily melts in the hands of modern social scientists who have (as Watergate has shown in America and has India had its counterpart?) debunked and stripped the professional emperor naked. 'Altruism' has been exposed, cash has overcome craft nexus and if professionalism is a mundane ideology, then "profession" and "professional" are sociological contributions to the pile. Anyway, inthe sophisticated organization of expert services, all occupations have central skills, an occupational code of ethics, a group culture, some occupational-authority, and some permission to monopoly practice from the community. This incisive approach makes it difficu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, perhaps large in numbers in the muffasil, may not squarely fall within the definition of industry. A single lawyer, a rural medical practitioner or urban doctor with a little assistant and/or menial servant may ply a profession but may not be said to run an industry. That is not because the employee does not make a contribution nor because the profession is too high to be classified as a trade or industry with its commercial connotations but because there is nothing like organised labour in such employment. The image of industry or even quasi-industry is one of a plurality of workmen, not an isolated or single little assistant or attendant. The latter category is more or less like personal avocation for livelihood taking some paid or part-time from another. The whole purpose of the Industrial Disputes Act is to focus on resolution of industrial disputes and regulation of industrial relations and not to meddle with every little carpenter in a village or blacksmith in a town who sits with his son or assistant to work for the customers who trek in. The ordinary spectacle of a cobbler and his assistant or a cycle repairer with a helper, we come across in the payments of cities and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e preliminary conclusion that teachers are not 'workmen' by definition. Perhaps, they are not are given to avoid the because teachers do not do manual work or technical work. We are not too sure whether it is proper to disregard, with contempt, manual work and separate it from education, nor are we too sure whether in our technological universe, education has to be excluded. However, that may be a battle to be waged on a later occasion by litigation and we do not propose to pronounce on it at present. The Court, in the University of Delhi, proceeded on that assumption viz. that teachers are not workmen, which we will adopt to test the validity of the argument.') The reasoning of the Court is best expressed in the words of. Gajendragadkar, J. : "It is common ground that teachers employed by educational institutions, whether the said institutions are imparting primary, secondary, collegiate or postgraduate education, are not workmen under s. 2(s), and so, it follows that the whole body of employees with whose cooperation the work of imparting education is carried on by educational institutions do not fall within the purview of s. 2(s) and any disputes between them and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... social justice is wide enough to include teaching and teachers, and the requirement that teachers should receive proper emoluments and other amenities which is essentially based on social justice cannot be disputed; but the effect of excluding teachers 'from s. 2(s) is only this that the remedy available for the betterment of their financial prospects does not fall under the Act. It is well known that Education Departments of the State Governments as well as the Union Government, and the University Grants Commission carefully consider this problem and assist the teachers by requiring the payment to them of proper scales of pay and by insisting on the fixation of other reasonable terms and conditions of service in regard to teachers engaged in primary and secondary education and collegiate education which fall under their respective jurisdictions. The position nevertheless is clear that any problems connected with teachers and their salaries are outside the purview of the Act, and since the teachers form the sole class employees with whose co-operation education is imparted by educational institutions, their exclusion from the purview of the Act necessarily corroborates the conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... university was teaching and since teachers did not come within the purview of the, Act, only the incidental activity of the subordinate staff could fall within its scope but that could not alter the predominant character of the institution. We may deal with these contentions in a brief way, since the substantial grounds on which we reject the reasoning have already been set out elaborately. The premises relied on is that the bulk. of the employees in the university is the teaching community. Teachers are not workmen and cannot raise disputes under the Act. The subordinate staff being only a minor category of insignificant numbers, the institution must be excluded, going by the predominant character test. It is one thing to say that an institution is not an industry. It is altogether ,another thinking to say that a large number of its employees are not workmen' and cannot therefore, avail of the benefits of the. Act so the institution ceases to be an industry. The test is not the predominant number of employees entitled to enjoy the benefits of the Act. The true test is the predominant nature of the activity. In the case of the university or an educational institution, the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portive staff of artistes or others. There is no regarding touch about 'industry', especially in the light of Mahatma Gandhi's dictum that 'Work is Worship'. Indeed the, colonial system of education, which divorced book learning from manual work and practical training, has been responsible for the calamities in that field. For that very reason, Gandhiji and Dr. Zakir Hussain propagated basic education which used work as modus operandi for teaching. We have hardly any hesitation in regarding education as an industry. The final ground accepted by the Court is that education is a mission and vocation, rather than a profession or trade or business. The most that one can say is that this is an assertion which does not prove itself. Indeed, all life is a mission and a man without a mission is spiritually stillborn. The high mission of life is the manifestation of the divinity already in man. To christen education as a mission, even if true, is not to negate its being an industry. We have to look at educational activity from the angle of the Act, and so viewed the ingredients of education are fulfilled. Education is, therefore, an industry and nothing can stand in the way of that conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition towards workmen and a, trichotomy of charitable enterprises run for producing and/or supplying goods and services, organised systematically and employing workmen, is scientific. The first is one where the enterprise, like any other, yields profits but they are siphoned off for altruistic objects. The second is one where the institution makes no profit but hires the services of employees as in other like businesses but the goods and services, which are the output, are made available, at low or no cost, to the indigent needy who are priced out of the market. The third is where the establishment is oriented on a humane mission fulfilled by man who work, not because they are paid wages, but because they share the passion for the cause and derive job satisfaction from their contribution. The first two are industries, the third not. What is the test of identity whereby these institutions with eleemosynary inspiration fall or do not fall under the definition of industry ? All industries are organised, systematic activity. Charitable adventures which do not possess this feature, of course, are not industries. Sporadic or fugitive strokes of charity do 'not become industries. All thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce between the commercial and the compassionate employers is not with reference to the workmen but with reference to the recipients of goods and services. Charity operates not vis-a-vis the workmen in which case they will be paying a liberal wage and generous extras with no prospect of strike. The beneficiaries of the employees charity are the indigent consumers. Industrial law does not take note of such extraneous factors but regulates industrial relations between employers and employers and workmen and workmen and workmen. From the point of view of the workmen there is no charity. For him charity must begin at home. From these strands of thought flows the conclusion that the 'second group may legitimately and legally be described as industry. The fallacy in the contrary contention lies in shifting the focus from the worker and the industrial activity to the disposal of the end product. This law has nothing to do with that. The income-tax may have, social opinion may have. Some of the appellants may fall under the second category just described. While we are not investigating into the merits of those appeals, we may as well indicate, in a general way, that the Gandhi Ashram, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality. Special emphasis, in such cases, must be placed on the central fact of employeremployee relations. If a philanthropic devotion is the basis for the charitable foundation or establishment, the institution is beaded by one who wholeheartedly dedicates himself for the mission and pursues it with passion, attracts Others into the institution,. not for wages but for sharing in the cause and its fulfillment, then the undertaking is not 'industrial'.. Not that the presence of charitable impulse. extricates the institution from the definition in Sec. 2(j) but that there is no economic relationship such as is found in trade or business between the head who employs and the others who emotively flock to render service. In one sense, there are no employers and employees but crusaders all. In another sense, there is no wage basis for the employment but voluntary participation in the production, inspired by lofty ideals and unmindful of remuneration, service conditions and the Eke. Supposing there I Ashram or Order with a guru or other head. Let us further is an assume that there is a band of disciples, devotees or priestly subordinates in theOrder, gathered together for prayers, ascetic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try, It now remains to make a brief survey of the precedents on the point. One case which is germane to the issue is Bombay Pinjrapole ([1972] 1 S.C.R. 202). A Bench of this Court considered the earlier case-law, including the decisions of the High Court s bearing on humane activities for the benefit of sick animals. Let there be no doubt that kindness to out dumb brethren, especially invalids, springs from the highest motives of fellow feeling. In the land of the Buddha and Gandhi no one dare argue to the contrary. So let there be no mistaking our compassionate attitude to suffering creatures. It is laudable and situations dedicated to amelioration of conditions of animals deserve encouragement from the State and affluent philanthropists. But these considerations have no bearing on the crucial factors which invoke the application of the definition in the Act as already set out elaborately by us. "The manner in which the activity in question is organised or arranged, the condition of the cooperation between the employer and the employee necessary for its success and its object to reader material service to the community" is a pivotal factor in the activity-oriented t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court levels has leaned more in favour of exemption where profit-motive has been absent. The Kurji Holy Family Hospital ([1971] 1 S.C.R. 177) was held not to be an industry because it was a non-profit-making body and its work was in the nature of training, research and treatment. Likewise in Dhanrajgirji Hospital v. Workmen (A.I.R. 1975 S.C. 2232) a bench of this Court held that the charitable trust which ran a hospital and served research purposes and training of nurses was not an industry. The High Courts of Madras and Kerala have also held that research institutes such as the Pasteur Institute, the C.S.I.R. and the Central Plantation Crops Research Institute are not industries. The basic decision which has gone against the Ahmedabad Textile case is the Safdarjung case. 'We may briefly examine the rival view-points, although in substance we have already stated the correct principle. The view that commends itself to us is plainly in reversal of the ratio of Safdarjung which has been wrongly decided, if we may say so with great respect. Research Does research involve collaboration between employer and employee ? It does. The employer is the institution, the employees are the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o eschew subjective projections masked as judicial processes. The true test as we apprehend from the economic history and functional philosophy of the Act is based on the pathology of industrial friction and explosion impeding community production and consumption and imperiling peace and welfare. This social pathology arises from the exploitative potential latent in organized employer-employee relations. So, where the dichotomy of employer and workmen in the process of material production is present, the service of economic friction and need for conflict resolution show up. The Act is meant to obviate such conformation and 'industry' cannot functionally and defunctionally exceed this object. The question is whether in a club situation-or of a co-operative or even a monastery situation, for that matter a dispute potential of the nature suggested exists. If it does, it is an industry, since the basic elements are satisfied. If productive cooperation between employer and employee is necessary, conflict between them is on the cards, be it a social club, mutual benefit society, pinjarapole, public service or professional office. Tested on this touchstone, most clubs will fail to qualify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e most exclusive clubs of imperial vintage and class snobbery admit members' guests who are not specific souls but come from the unrefused community or part of a community. Clubs speaking generally are social institutions enlivening community life and are the fresh breath of relaxation in a fadedsociety. They serve a section and answer the doubtful test of serving the community. They are industry. We have adverted to a possible category of clubs and associations which may swim out of the industrial pool-we mean self-serving clubs, societies or groups or associations. Less fashionable but more numerous in a poor, populous, culturally hungry country with democratic urges and youthful vigour is this species. Lest there should be a rush by the clubs we have considered and dismissed to get into this proletarian brood if we may so describe them to identify, not at all to be pejorative,-we must elucidate. It is a common phenomenon in parts of our country that workers, harijans, student youth at the lower rung of the socioeconomic ladder weaker sections like women and lowincome, groups quench their cultural thirst by forming gregarious organisations mainly for recreation. A few books and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th +,he upper bracket's Gyamkhana Club, Cosmopolitan Club, Cricket Club of, India, 'National Sports Club of India whose badge is pleasure paid for and provided through skilled or semiskilled catering staff. We do not deal with hundred per cent social service clubs which meet once in a way, hire a whole evening in some hotel, have no regular staff and devote their energies and resources also to social service projects. There are many brands and we need not deal with everyone. Only if they answer the test laid down affirmatively they qualify. The leading cases on the point are Gyamkhana and C.C.I. We must deal with them before we conclude on this topic. The Madras Gymkhana Club, a blue-blooded, members' club has the socialite cream of the city on its rolls. It offers choice facilities for golf, tennis and billiards, arranges dances, dinners and refreshments, entertains and accommodates guests and conducts tournaments for members and nonmembers. These are all activities richly charged with pleasurable service. For fulfilment of these objects the club employs officers, caterers, and others on reasonable salaries. Does this club become an industry? The label matters little; the substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business or as an undertaking analogous to trade or business. This element is completely missing in a members' club. 'This element'? What element makes it analogous to trade? Profit motive ? No, says the learned judge. Because it is a self-serving institution ? Yes ? Not at all. For, if it is self-service then why the expensive establishment and staff with high salary bills ? It is plain as day-light that the club members do nothing to produce the goods or services. They are rendered by employees who work for wages. The members merely enjoy club life, the geniality of company and exhilarating camaraderie, to the accompaniment of dinners, dance, games and thrills. The 'reason' one may discover is that it is a members' club in the sense that 'the club belongs to members for the time being on its, list of members and that is what matters. Those members can deal with the club as they like. Therefore, the club is identified with its members at a given point of time. Thus, it cannot be said that the club has an existence apart from the members'. We are intrigued by this reason. The ingredients necessary for an industry are present here and yet it is declared a non-industry because t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int to salvage a certain class of socialite establishments. Presbyter is only priest writ large. club is industry manu brevi Co-operatives. Co-operative societies ordinarily cannot, we feel, fall outside Sec. 2 (j) After all, the society, a legal person, is the employer. The members and/or others are employees and the activity partakes of the nature of trade. Merely because Co-operative enterprises deserve State encouragement the definition cannot be distorted. Even if the society is worked by the members only, the entity (save where they are few and self-serving) is an industry because the member workers are paid wages and there can be disputes about rates and different scales of wages among the categories i.e. workers and workers or between workers and employer. These societies edit societies, marketing Co-operatives, , producers' or consumers' societies or apex societies-are industries. Do credit unions, organised on a cooperative basis, scale the definitional walls of industry ? They do. The judgment of the Australian High Court in The Queen v. Marshall Ex Parte Federated Clerks Union of Australia ([1975] 132 C.L.R. 595) helps reach this conclusion. There, a credit union, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the Tuberculosis Association of India. The hospital is wholly charitable and is a research institute. The dominant purpose of the Hospital is research and training, but as research and training cannot be given without beds in a hospital, the hospital is, run. Treatment is thus a part of research and training. In these circumstances th e Tuberculosis Hospital cannot be described as industry. The objects of the Kurji Holy Family Hospital are entirely charitable. It carries on work of training research and treatment. Its income is mostly from donations and distribution of surplus as profit. is prohibited. It is, therefore, clear that it is not an industry as laid down in the Act." Even a cursory glance makes it plain that the learned Judge took the view that a place of treatment of patients, run as a department of government, was not an industry because it was a part of the functions of the government. We cannot possibly agree that running a hospital, which is a welfare activity and not a sovereign function, cannot be an industry. Likewise, dealing with the Tuberculosis Hospital case, the learned Judge held that the hospital was wholly charitable and also was a research i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, transportation mail delivery telephones and the like. In providing the services there may be employment of trained men and even professional men but the emphasis is not on what these men do but upon the productivity of a service organised as an industry and commercially valuable. Thus the services of professional men involving benefit to individuals according to their needs, such as doctors, teachers, lawyers, solicitors etc. are easily distinguishable from an activity such as transport service. The latter is of a commercial character in which something is brought into existence quite apart from the benefit to particular individuals. It is the production of this something which is described as the production of material services.' With the greatest respect to the learned Chief Justice, the arguments strung together in this paragraph are too numerous and subtle for us to imbibe. It is transcendental to define material services as excluding professional services. We have explained this position at some length elsewhere in this judgment and do 'not feel the need to repeat. Nor are we convinced that Gymkhana and Cricket Club of India are correctly decided. The learned Judge plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to regard hospitals, research institutions and training centres as valuable material services to the community, qualifying for coming within sec. 2(j). We must plainly state that vis-a-vis hospitals, Safdarjung was wrong and Hospital Mazdoor Sabha was right. Because of the problems of reconciliation of apparently contradictory stands of reasoning in Safdarjung we find, subsequent cases of' this Court striking different notes. In fact, one of us (Bhagwati J.), in Indian Standards Institution ([1976] 2 S.C.R. 138) referred, even at the opening, to the baffling, perplexing question which, judicial ventures had not solved. We fully endorse the observations of the Court in I.S.I. : "So infinitely varied and many-sided is human activity and with the incredible growth and progress in all branches of knowledge and ever widening areas of experience at all levels, it is becoming so diversified and expanding in so. many directions hitherto un-thought of, that no rigid and doctrinaire approach can be adopted in considering this question. Such an approach would fail to measure up to the needs of the growing welfare state which is constantly engaged in undertaking ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) Chartered Accountants([1963] 1 L.L.J. 567 (culcutta)) climaxed by Safdarjung, carved out sanctuaries. The six-member bench-the largest which sat on this court conceptually to reconstruct 'industry', affirmed and reversed, held profit motive irrelevant but upheld charitable service ,as exemptive, and in its lights and shadows, judicial thinking became ambivalent and industrial jurisprudence landed itself in a legal quagmire. Pinjrapoles sought salvation and succeeded in principle (.Bombay Panjrapole), Chambers of, Commerce fought and failed, hospitals battled to victory (Dhanrajgirji Hospital), standards institute made a vain bid to extricate (I.S.I. Case), research institutes,. at the High Court level, waged and won non-industry status in Madras and Kerala. The murky legal sky paralysed tribunals and courts and administration and then came, in consequence, this reference to a larger bench of seven judges. Banerji, 'amplified by Corporation of Nagpur, in effect met with its Waterloo in Safdarjung. But in this latter case two voices could be heard and subsequent rulings zigzaged and conflicted precisely because of this built-in ambivalence. It behaves us, therefore, hopefully to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the nature of the activity, viz. the employer-employee basis, bears resemblance to what we find in trade or business. This takes into thefold of 'industry' undertakings, callings and services adventure 'analogous to the carrying on of trade or business'. All features, other than the methodology of carrying on the activity viz. in organizing the co-operation between employer and employee may be dissimilar. It does not matter, if off the employment terms there is analogy. III. Application of these guidelines should not stop short of their logical reach by invocation of creeds, cults or inner sense of incongruity or other sense of motivation for or resultant of the economic operations. The ideology of the Act being industrial peace, regulation and resolution of industrial disputes between employer and workmen, the range of this statutory ideology must inform the reach of the statutory definition. Nothing less, nothing mom. (a) The consequences are (i) professions, (ii) Clubs (iii) educational institutions (iiia) co-operatives, (iv) research institutes (v) charitable projects and (vi) other kindred adventures, if they fulfil the triple tests listed in I (supra), cannot be exempted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nrajgirji Hospital and other rulings whose ratio runs counter to the principles enunciated above, and Hospital Mazdoor Sabha is hereby rehabilitated. We conclude with diffidence because Parliament which has the commitment to the political nation to legislate promptly in vital areas like industry and trade and articulate the welfare expectations in the conscience' portion of the constitution, has hardly intervened to restructure the rather clumsy, vaporous and tall-aud-dwarf definition or tidy up the scheme although Judicial thesis and anti-thesis, disclosed in the two decades long decisions, should have produced a legislative synthesis becoming of a welfare State and Socialistic Society, in a world setting where I.L.O. norms are advancing and India needs updating. We feel confident, in another sense, since counsel stated at the bar that a bill on the subject is in the offing. The rule of law, we are sure, will run with the rule of Life-Indian Life-at the threshold of the decade of new development in which Labour and Management, guided by the State, will constructively partner the better production and fair diffusion of national wealth. We have stated that, save the Bangalore Water ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be read into the definition so as to restrict its, scope as reasonably as one may, without doing violence to the supposed intention of the legislature. An attractive argument based on a wellknown principle of statutory interpretation is often advanced in support of the latter view. That principle is known as 'noscitur a sociis' by which is meant that associated words take their meaning from. one another. That is to say, when two or more words which are susceptible of analogous meaning are coupled together, they take their colour from each other so that the width of the more general words may square with that of words of lesser generality. An argument based on this principle was rejected by Gajendragadkar, J., while speaking on behalf of the Court, in State of Bombay Others v. The Hospital Mazdoor Sabha Others ([1960] 2 S.C.R. 866). A group of five hospitals called the J. J. Hospital, Bombay, which is run and managed by the State Government in order to provide medical relief and to promote the health of the people was held in that case to be an industry. The Court expressed its opinion in a characteristically clear tone by saying that if the object and scope of the Industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agitated and perplexed the judiciary at all levels. In the Hospital Mazdoor Sabha (supra) the Court rejected, on concession, two possible limitation on the meaning of 'industry' as defined in section 2(j) of the Act : firstly, that no activity can be an industry unless accompanied by a profit motive and secondly, that investment of capital is indispensable for treating an activity as an industry.,, The Court also rejected, on examination, the limitation that a quid pro quo for services rendered is necessary for bringing an activity within the terms of section 2(j). If the absence of profit motive was immaterial, the activity, according to the Court, could not be excluded from section 2(j) merely because the person responsible for the conduct of the activity accepted no return and was actuated by philanthropic or charitable motives. The Court ultimately drew a line at the point where the regal or sovereign activity of the Government is undertaken and held that such activities of the Government as have been pithily described by Lord Watson as "the primary and inalienable functions of a constitutional Government", could be stated negatively as falling outside the scope of section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion then is : If there is no doubt either as to the meaning of the words used by the legislature in section 2(j) or on the question that these are words of amplitude, what justification can one seek for diluting the concept of industry as envisaged by the legislature ? On a careful consideration of the question I am of the opinion that Hospital Mazdoor Sabha was correctly decided in so far as it held that the J. J. group of hospitals was an industry but, respectfully, the same, cannot be said in regard to the view of the Court that certain activities ought to be treated as falling outside the definition clause. One of the exceptions carved out by the Court is in favour of activities undertaken by the Government in the exercise of its inalienable functions under the Constitution, call it regal, sovereign or by any other name. I see no justification for excepting these categories of public utility activities from the definition of 'industry'. If it be true that one must have. regard to the nature of the activity and not to who engages in it, it seems to me beside the point to enquire whether the activity is undertaken by the State, and further, if so., whether it is undertake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to me, view the State's inalienable functions, it seems to me to follow logically that a systematic activity which is organised or arranged in a manner in which trade or business is generally organised or arranged would be an industry despite the fact that it proceeds from charitable motives. It is the nature of the activity that one has to consider and it is upon the application of that test that the State's inalienable functions fall within the definition of 'industry'. The very same principle must yield the result that just as the consideration as to who conducts an activity is irrelevant for determining whether the activity is an industry, so is the fact that the activity is charitable in nature or is undertaken with a charitable motive. The status or capacity, corporate or constitutional, of the employer would have, if at all, closer nexus, than his motive, with the question whether the activity is an industry. And yet that circumstance, according to me, cannot affect the decision of the question. The motive which propels an activity is yet another step removed and, ex hypothesi, can have no relevance on the question as to what is the nature of the activity. It is never true t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ambit of the definition of industry. In Hospital Mazdoor Sabha (supra) the Court while evolving a working principle stated that an industrial activity generally involves, inter alia, the cooperation of the employer and the employee. That the production of goods or the rendering of material services to the community must be the direct and proximate result of such cooperation is a further extension of that principle and it is broadly by the application thereof that a Solicitor's establishment is held not to attract the definition clause. These refinements are, with respect, not warranted by the words of the definition, apart from the consideration that in practice they make the application of the definition to concrete cases dependent upon a factual assessment so highly subjective as to lead to confusion and uncertainty in the understanding of the true legal position. Granting that the language of the definition is so wide that some limitation ought to be read into it, one must stop at a point beyond which the definition will skid into a domain too rarefied to be realistic. Whether the cooperation between the employer and the employee is the proximate cause of the ultimate product a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the remaining aspects of the case I have nothing useful to add to the penetrating analysis of the problem made by Brother Krishna Iyer in his judgment. JASWANT SINGH, J. It may be recalled that in the order dated February 21, 1978 pronounced by our learned brother, Chandrachud, J. (as he then was) on 'behalf of himself, brother Tulzapurkar and myself, expressing our respectful agreement with the view expressed by our learned brother Krishna Iyer that the Bangalore Water Supply Sewerage Board appeal be dismissed, it was stated that we would indicate the area of concurrence and divergence, if any, later on. Accordingly, we proceed to do that now. The definition of the term "industry" as contained in Section 2(j) of the Industrial Disputes Act which is in two parts being vague and too wide as pointed out by Beg, C.J. and Krishna lyer, J., we have struggled to find out its true scope and ambit in the light of plethora of decisions of this Court which have been laying down fresh tests from time to time making our task an uphill one. However, bearing in mind the collocation of the terms in which the definition is couched and applying the doctrine of noscitur a sociis (which, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Club([1968] 1 S.C.R. 742) and Management of Safdarjung Hospital, New Delhi V. Kuldip Singh Sethi ([1971] 1 S.C.R. 177). Speaking for the Bench in State of Bombay Ors. v. The Hospital Mazdoor Sabha Ors. (supra), Gajendragadkar, J. (as he then was) observed in this connection thus : "It is clear, however, that though s. 2(j) uses words of very wide denotation, a line would have to be drawn in a fair and just manner so as to exclude some callings, services or undertakings. If all the words used are given their widest meaning, all services and all callings would come within the purview of the definition; even service rendered by a servant purely in a personal or domestic matter or even in a casual way would fall within the definition. It is not and cannot be suggested that in its wide sweep the word "service" is intended to include service however rendered in whatsoever capacity and for whatsoever reason. We must, therefore, consider where the line should be drawn and what limitations can and should be reasonably implied in interpreting the wide words used in s. 2(j); and that no doubt is a somewhat difficult problem to decide." In view of the difficulty experienced by all of u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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