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TMI Blog1958 (11) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 2, 3 and 4. They carried on their practice as solicitors in the name of Messrs Pereira. Fazalbhoy and Co. until 15th November 1957, when the firm was dissolved. The second petitioner was employed as an assistant accountant in this firm. The first petitioner is a Trade Union and some of its members were the employees in the firm of Messrs. Pereira Fazalbhoy and Co., to which we will hereafter refer as the firm. In August 1957 the first petitioner wrote to the firm an submitted certain demands on behalf of the employees of the firm. The demands related to Bonus for the years ending 31st March 1955, 31st March 1958 and 31st March 1957 and to certain other matters. As no agreement could be reached between the parties, conciliation proceedings were started. Thus Conciliation Officer could not also bring about a settlement between the parties. He submitted a report to Government, who on 3rd February 1958 referred the dispute in regard to bonus for two years ending 31st March 1956 and 31st March 1957 to an Industrial Tribunal under Sub-section (5) of Section 12 of the Industrial Disputes Act. Respondents Nos. 2 to 4 to whom I will hereafter refer as the respondents, raised a prelimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. Another definition, which is material, is that of the word workman who is defined as meaning any person employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward. The rest of the definition of this word is not material in this case. Workman is therefore defined as meaning any person employed in any industry. Industrial dispute means so far as is material a dispute between employers and workmen, that is, between employers and persons employed in an industry. Before there can, therefore, be a workman or an industrial dispute, there must first be an industry. 3. The principal question to be decided in this application, therefore, is whether the profession of a solicitor can be said to be an industry within the meaning of the Act. Mr. Gokhale, who appears on behalf of the petitioners, has strenuously contended that such a profession would fall within the words ''business undertaking and calling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ork or project which a person might engage in and that such work or project might have no commercial implications. The word undertaking is also used in Section 25FF and Section 25FFF of the Act. Section 25FF begins with the words Where the ownership or management of an undertaking is transferred.... In these sections undertaking is therefore used in the sense of an enterprise which can be owned and transferred. A solicitor's work, which depends entirely on his own personal intellectual ability, is not capable of being transferred. Consequently it would not be an undertaking within the meaning of the Act. 5. The word ''calling is however very wide. According to its dictionary meaning, it means one's usual occupation, vocation, business or trade. Both the words business and calling are therefore words of wide connotation. If therefore, the ordinary dictionary meaning is to be given to them, it will be difficult: to hold that the practice or the profession of a solicitor is not an industry. In fact it would not be easy to conceive of any profession which would not then fall within the definition of this expression. This could not be the object of the Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y within the meaning of the Act. This argument ignores the basic concept of industry, which is that there must be joint endeavour of both the employer and the employed. The argument, if accepted, would lead to astounding results. The business of a hawker would have to be held to be an industry if the employs a laborer to carry his basket. So also the business of a petty shop-keeper, like that of a pan-shop, will have to be held to be an industry, if a servant is employed to sweep and clean the shop. A doctor who visits his patients would be deemed to be engaged in an industry, if he employs a peon to carry his bag containing instruments and medicines. Several other similar instances could be envisaged. We have no doubt that the Legislature could not have intended that the Act should result in such drastic and serious consequences. 7. In any case, the basic concept of industry has always been held to be that there must be co-operation between the employer and the employees either in producing wealth or in rendering services. In other words, what comes out of the industry must be the result of the combined effort of both. That the Legislature had this concept in mind is indicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Association of Australia v. State of Victoria (1929) 41 CLR 569, Mr. Gokhale has contended that rendering of services may by itself be sufficient to make an organisation an industry. We are inclined to accept this argument, particularly having regard to the fact that the second part of the definition includes any service within the term 'industry'. But as I will point out presently, in the same case, for a service to be regarded as industry, Isaacs, J. himself considered co-operation between employer and employees as being a necessary requisite. 9. The pursuit of a learned profession like that of a solicitor does not require any co-operation of labour. A solicitor offers his own personal services or, to put it in different words, is paid for the legal advice and legal assistance given by him personally. His staff cannot do this work or give legal aid to his clients. The money which he earns is for work done by him personally. Its quality depends on his personal qualifications, his brains, his knowledge of law, and the labour put in by his personally. The remuneration earned by him depends upon his personal reputation and the kind and quality of work done by him persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er terms and conditions of their cooperation. This formula excludes the two extreme contentions of the claimant and the respondents respectively. It excludes, for instance, the legal and the medical professions, because they are not carried on in any intelligible sense by the co-operation of capital and labour and do not come within the sphere of industrialism.... It implies that 'industry', to lead to an industrial dispute, is not, as the claimant contends, merely industry in the abstract sense as if it alone effected the result, but it must be acting and be considered in association with its co-operator 'capital' in some form so that the result is, in a sense, the outcome of their combined efforts. Co-operation of capital and labour and their combined effort were, therefore, held to be essential elements of the concept of industry, This case has been referred to at some length by the Supreme Court in their judgment in Banerji's case 1953 SCR 302 : AIR 1953 SC 58. 12. The other case from Australia, to which reference has been made, is (1929) 41 CLR 509. In that case the High Court of Australia, by a majority of 4 to 1, held that the educational activities o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... division of the active parties in industry into the two groups of employing and employed. At p. 577 Isaacs J. rejected the argument that an industrial dispute cannot possibly occur except where there is furnished to the public - the consumers by the combined efforts of employers and employed, wealth in the sense of tangible, ponderable, corpuscular wealth. In his opinion an organisation for service could also be regarded as an industry. On the same p. 577 he observed: 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 in statistics. At heart they are a struggle, constantly becoming more intense on the part of the employed group engaged in co-operation with the employing group in rendering services to the community essential for a higher general human welfare, to share in that welfare in a greater degree. Even in this judgment, therefore, Isaacs, J, adhered to his previous view that in an industry there are two partners, the employer and the employed and that the result or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not being a necessary element of the concept of industry. (15) In the third Nagpur Corporation case 60 Bom LR 180 : AIR 1958 Bom 231, the decision in the Hospital Mazdoor Sabha case 58 Bom LR 769 was followed it was held that the question whether any particular activities of a local authority are industrial activities or not can only be decided after bearing in mind the definition of the term industry contained in the Act, and examining the activities of those as well as of other departments in the light of that definition as well as of the test laid down in the Hospital Mazdoor Sabha case. In his judgment at p. 186 Mudholkar J. cited the first sentence in the passage from the judgment of Isaacs and Rich JJ. in Federated Municipal Employees' Union case 26 CLR 508 at p. 554, which I have quoted above, and observed that it did not appear that Their Lordships were of the view that for an activity to be classed an industry it must necessarily be carried on by the co-operation of capital and labour for the satisfaction of human wants and desires. The attention of the learned Judges does not appear to have been invited to the subsequent observation in the same passage that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve to be done by accountants, and the fact that assistants are employed to assist, do not make the result or the product joint as in an industry. The product remains the individual product. A solicitor who gives legal advice to his client may give it orally, or may write it in his own hand. The fact that instead of writing his legal advice in his Own hand he employs a typist does not make it an industry, nor does it make the legal advice the joint product between him and the typist. At p; 468 he observed; In an expanding society with broadening concept of business and industry the word 'industry' is also enlarging its ambit, scope and expression. Even then outside the expanding horizon of industrial an industrial civilization and in an industrial democracy there still remains the vast world of individual work and individual endeavour depending on individual skill, excellence and peculiarity personal to the individual or individuals concerned. That vast world does not come within the increasing glitter and glamour of industry.... One such world is the world of private endeavour and private excellence personal to the individual concerned. Learned professions, understood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the petitioners were employed. With regard to the deed of partnership executed in 1946, it is admitted that this document was produced by the respondents in Court. It was shown to the Tribunal. The petitioners have alleged in Clause (u) of para 11 of the petition that this document was not shown to them. The respondents have in their affidavit denied in general terms the allegations made by the petitioners in para 11 of their petition. Even assuming that this document was not shown to the petitioners, we do not think that any injustice has been caused to them, because the only transaction alleged by them, which took place during the time the firm, in which they were employed, was in existence, was a transaction in which the respondents purchased a property in execution of an order made in their favour for costs. This transaction by itself would not be a sufficient ground for holding that the respondents were engaged in the business of purchasing and selling property. 19. The view taken by the Industrial Tribunal that the respondents' firm did not constitute an industry, and that the dispute between them and their employees was not an industrial dispute, which could be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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