TaxTMI 
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1978 (2) TMI 204
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....erform a function very akin to legislation. 2. My learned brother has relied on 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 L....
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.... basic fundamental rights, provide us with a compass. This Court has tried to indicate in recent cases that the 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. 5. 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....
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....d down in Heydon's case (supra) referred to by my learned brother Iyer, the well-known principle that a statute must be interpreted 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 legis....
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..... 55). It was also said there : "It is necessary, therefore, to take the Act as a whole and examine its salient provisions. The 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. 10. 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." 11. In that very case this Court also said (at p. 308) : ....
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....word "Manufacture" of employers could not be interpreted literal1y. It merely means a process of manufacture in which the employers may be engaged. It is, however, evident that the term 'employer' necessarily 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 ....
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....o protect them. Such is not the type of persons who will raise such a dispute as workmen or employees whatever they may be doing. 18. This leads one on to consider another kind of test. It is that, wherever an industrial dispute could arise between either employers 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 ....
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....hinking partly because I am in agreement with the conclusions of my learned brother Iyer and I also endorse his reasoning almost wholly but even more because the opinion I have dictated just now must be given today if I have to deliverit at all. From tomorrow I cease to have any authority as a Judge to deliver 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. 22. 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....
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....s survived indeed, has been accentuated by-the judgment of this six-member bench in Safdar Jung(Management of Safdarjung Hospital, New Delhi, v. Kuldip Singh Sethi [1971] 1 S.C.R. 177), if we may say so with deep respect, has led to a reference to a larger bench of this diehard dispute as to what an 'industry' under Section 2(j) means. 27. Legalese and logomachy 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 repositori....
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....tive and Executive branches, is deeply concerned with law's delays and to devise a prompt delivery system of social justice. 29. Though the tailoring of a definition is the sole forensic job in this batch of appeals, dependent on which, perhaps, a few thousand other cases await decision, the cycloramic semantics of the simple word 'industry' and the judicial gloss on it in a catena of cases, 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. 30. 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....
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....inition of "industry", and, if we may add "workman". Had this been done with aware and alert speed by the legislature, litigation which is the besetting sin of industrial life could well have been avoided to a considerable degree. That consummation may perhaps happen on a distant day, but this Court has to decide from day to day disputes involving this branch of industrial law and give guidance by declaring what is an industry, through the process of 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. The....
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....sy. An industry is a continuity, is an organized activity, is a purposeful pursuit-not any isolated adventure, desultory excursion or casual, fleeting engagement motivelessly undertaken. Such is the common feature of a trade, business, calling, manufacture mechanical or handicraft based-service, employment, industrial occupation or avocation. For those who know English and are not given to the luxury of splitting semantic hairs, this conclusion argues itself. The expression 'Undertaking' can not 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. 39. Likewise, an '....
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....um nor to truncate the obvious amplitude of the provision to fit it into our mental would of beliefs and prejudices or social philosophy conditioned by class interests. Subjective wish shall not be father to the forensic thought, if credibility with a pluralist community is a value to be cherished. "Courts do not substitute their social and economic beliefs for the judgment of legislative bodies". [See (Constitution of the United States of America) Corwin p. xxxi]. Even so, this legislation has something to do with social justice between the 'haves' and the 'have-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, ....
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....me 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." The duty of the court is to interpret the words that the legislature has used; those words may be ambiguous, but. even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited." 45. The Industrial Disputes-Malhotra, Vol. 1 pp. 44 & 45) 46. We may start the discussion with the leading case on the point, which perhaps may 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 vag....
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.... well as the lowliest and the lost will suffer. Counsel for the appellants struck this pessimistic note. Is it not obvious from these rival thought ways that law is valued loaded that social philosophy is an inarticulate interpretative tool ? This is inescapable in any school of jurisprudence. 49. Now let us itemise, illustratively, the posers springing from the competing Submissions, so that the contentions may be concretised. 1. (a) Are establishments, run without profit motive. industries ? (b) Are Charitable institutions industries? (c) Do undertakings governed by a no-profitno-loss rule. statutorily or otherwise fastened, fall within the definition in Sec. 2(j) ? (d) Do, clubs or other organisations (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 out....
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....on. Shri M. K. Ramamurthy, encored by Shri R. K. Garg, argued emphatically that after Safdarjung, the law is in trauma and so a fresh look at the problem is ripe. The learned Attorney General and Shri Tarkunde, who argued at effective, illuminating length, as well as Dr. Singhvi and Shri A. K. Sen who briefly and tellingly supplemented, did not hide the fact that the law is in Queer Street but sought to discern a golden thread of sound principle which could explain the core of the rulings which peripherally had contradictory thinking. In this situation, it is not wise, in our view, to reject everything ruled till date and fabricate new tests, armed with lexical wisdom or reinforced by vintage judicial thought from Australia. Banerji we take as good, and anchored on its authority, we will examine later decisions to stabilize the law on the firm principles 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 thei....
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....unacquainted with advancIng legal concepts of what is meant by industry would rule out such a connotation as impossible. There is nothing however to prevent a statute from giving the word "industry" and the words "industrial dispute" a wider and more comprehensive import in order to meet the requirements of rapid industrial progress and to bring about in the interests of industrial peace and economy, a fair and satisfactory adjustment of relations between employers and workmen in a variety of fields of activity. It is obvious that the limited concept of what an industry meant in early times, must now yield place to an enormously wider concept so as to. take in various and varied forms of industry, so that dispute arising in connection with them might be settled quickly without much dislocation and disorganisation of the needs of society and in a manner more adapted to conciliation 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 ....
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....ion of avocation of workmen". "Undertaking" in the first part of the definition and 'industrial occupation or avocation in the second part obviously mean much more than what is ordinarily understood by trade or business. The definition was apparently intended to 'include within its scope what might not strictly be called a trade or business venture." So 'industry' overflows trade and business. Capital, ordinarily assumed to be a component of 'industry', is an expendable item so far as statutory 'industry' is concerned. To reach this conclusion, the Court referred to 'public utility service' Sec. 2(n) and argued "A public utility service such as railways, telephones and the supply of power, light or water,to the public may be carried on. by private companies or business corporations. Even conservancy or sanitation may be so carried on, though after the introduction of local self-government 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 sectio....
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.... is, by this token, untenable. 59. Another argument pertinent to our discussion is the sweep of the expression 'trade. The Court refers, with approval, to in-Bolton Corporation (143 A.C. 166) where the Law Lord observed : "Indeed 'trade' is not only in the etymological or dictionary sense, but in the legal usage, a term of the widest scope. It is connected originally with the word 'tread' and indicates a way of life or an occupation. In ordinary usage it may mean the occupation of a small shopkeeper equally with that of a commercial magnate. It may also mean a skilled craft. It is true that it is often used in contrast with a profession. A professional worker would not ordinarily be called a tradesman, but the word 'trade' is used in the widest application to the appellation 'trade unions'. Professions have their trade unions. It is also used in the Trade Boards Act to include industrial undertakings. I see no reason to exclude from 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 expr....
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....it on, it would not be industrial. The same argument would apply to baths, bridge-building, quarries, sanitary contracts, gas-making for lighting streets and public halls, municipal building of houses or halls, I and many other similar industrial undertakings. Even coalmining for use on municipal railways or tramways would not be industrial work if the contention of the respondents is correct. If the works in question are carried out by contractors or by private individuals it is said to be industrial, but not industrial within the meaning of the Arbitration Act or Constitution if carried out by municipal corporations. I cannot accept that view". (emphasis added) 60. The negation of profit motive, as a telling test against 'industry is clear from this quote. 61. All the indicia of 'industry' are packed into the judgment which condenses the conclusion tersely to hold that 'industries' will cover 'branches of work that can be said to be analogous to the carrying out of a trade or business'. The case, read as a whole, contributes to industrial jurisprudence, with special reference to the Act, a few positive facets and knocks down a few negati....
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....#39;analogous' activities must be measured. The similarity stressed relates to 'branches of work'; and more; the analogy with trade or business is in the 'carrying out' of the economic adventure. So, the parity is in the modus operandi, in the working-not in the purpose of the project nor in the disposal of the proceeds but in the Organisation of the venture, including the relations between the two limbs viz. labour and management. If the mutual relations, the method of employment and the process of co-operation in the carrying out of the work bear close resemblance to the organization method remuneration, relationship of employer and employee and the like then it is industry otherwise not. This is the kernel of the decision. An activity oriented, but motive based, analysis. 64. The landmark Australian case in 26 C.I.R. 508 (Melbourne Corporation) which was heavily relied on in Banerji may engage us, That ruling contains dicta, early in the century, which make Indian forensic fabianism sixty years after in the 'socialist' Republic blush That apart the discussion in the leading judgments dealing with industry from a constitutional angle but relying on ....
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.... a working partner-and entitled to consideration as such". 65. The same two judge choose to impart a wide construction to the word 'industry for they ask :'How can we conformably to recognized rules of legal construction, attempt to limit, in an instrument of self-government for this Continent, the simple and comprehensive words "industrial disputes" by any apprehension of what we might imagine would be the effect of a full liter construction, or by conjecturing what was in the minds of the framers of the constitution, or by the forms industrial disputes have, more recently assumed? "Industrial warfare", is no mere figure of speech. It is not the mere phrase, of theorists. It is recognized by the law as the, correct description of internal conflicts in industrial matters. It was adopted by Lord Loreburn L.C. in Conway v. Wade (A) (1909) A.C., at p511. Strikes and, lockouts are, by him, correctly described as "weapons".' These arguments hold good for the Indian industrial statute, and so, Sec. 2(j) must receive comprehensive literal force, limited only by some cardinal criteria. One such criterion, in the monarchical vocabulary of English Jurisprudence, is Crown exemp....
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.... v. The Hospital Mazdoor Sabha & Ors. ([1960] 2 S.C.R. 866) may now be analysed in the light of what we have just said. Filling the gaps in the Banerji decision and the authoritative connotation of the fluid phrase 'analogous to trade and business' were attempted in this twin decisions. To be analogous is to resemble in functions relevant, to the subject, as between like features of two apparently different things. So, some kinship through resemblance to trade or business, is the key to the problem, if Banerji is the guide star. Partial similarity postulates selectivity of characteristics for comparability. Wherein lies the analogy to trade or business, is then the query. 69. Sri Justice Subba Rao, with uninhibited logic, chases this thought and reaches certain tests in Nagpur Municipality, speaking for a unanimous Bench. We respectfully agree with much of his reasoning and proceed to deal with the decision. If the ruling, were right, as we think it is, the riddle of 'industry' is resolved in some measure. Although foreign decisions, words and phrases, lexical plenty. and definitions from other legislations, were read before us to stress the necessity of direct c....
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....ctive bargaining, applies both to the private sector and to nationalised undertakings and public bodies, it being possible to exclude from such application public servants engaged in the administration of the State. 141st Report, Case No. 729, para. 15., 251. Convention No. 98, which mainly concerns collective bargaining, permits (Article 6) the exclusion of "public servants engaged in the administration of the State". In this connection, the Committee of Experts on the Application of Conventions and Recommendations has pointed out that, while the concept of public servant may vary to some degree under the various national legal systems, the exclusion from the scope of the Convention of persons employed by the State or in the public sector, who do not act as agents of the public authority (even though they may be granted a status identical with that of public officials,engaged in the administration of the State) is contrary to the meaning of the Convention. The distinction to be, drawn, accordingly to the Committee, would appear to be basically between civil servants employed in various capacities in government ministries or comparable bodies on the' one hand ....
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....t too wide by expanding the elastic expressions calling, service employment and handicraft. To 'be 'over-inclusive may be impractical and so while accepting the enlargement of meaning by the device' of inclusive definition the Court cautioned "But such a wide meaning appears to over-reach the objects for which the Act was passed. It is, therefore, necessary to limit its scope on permissible grounds, having regard to the aim, scope and the, object of the whole Act." 73. After referring to the rule in Heydon's case, Subba Rao, J. proceeded to outline the ambit of industry thus " The word 'employers' in cl. (c) and the word employees' in cl. (b) indicate that the fundamental basis for the application, of the definition is the existence of,. That relationship. The cognate definitions of 'industrial dispute Act as well as its preamble show that the Act was passed to 'employer, ' employee', also support. The long title of the make provision for the promotion of industries and peaceful and amicable settlement of disputes between employers and employees in an organised activity by conciliation and arbitration and for certain ....
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....ed in this case with those, categories of employees who particularly come under departments charged with the responsibility for essential constitutional functions of government, it is appropriate to state that if there are industrial units severable from the essential functions and possess an entity of their own it may be plausible to hold that the employees of those units are workmen and those undertakings are industries. A blanket exclusion of every one of the host of employees engaged by government in departmental falling under general rubrics like, justice, defence, taxation, legislature, may not necessarily be thrown out of the umbrella of the Act. We say no more except to observe that closer exploration, not summary rejection, is necessary. 77. The Court proceeded, in the Corporation of Nagpur case, to pose for itself the import of the words 'analogous to the carrying out of a trade or business' and took the view that the emphasis was more on to equate the other activities with trade or business'. Obviously, non-trade operations were in many cases 'industry'. Relying on the Fabricated Engine Drivers((1913) 16 C.L.R. 245) Subba Rao, J., observed : ....
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....ld not otherwise be such". (Halsbury's Laws of England, Third Edition, Vol. 38, p. 11). 81. Does the badge of industrialism, broadly understood, banish, from its fold, education?, This question needs fuller consideration, as it has been raised in this batch of appeals and has been answered in favour of employers by this Court in the Delhi University case.([1964] 2 S.C.R. 703) But since Subba Rao, J., has supportively cited Isaacs J. in School Teachers' Association (supra), which relates to the same problem, we may, even here, prepare the ground by dilating on the subject with special reference to the Australian case. That learned Judge expressed surprise at the very question: "The basic question raised by this case, strange as it may seem, is whether the occupation of employees engaged in education, itself universally recognized as the key industry to all skilled occupations, is 'industrial' within the meaning of the Constitution". 82. The employers argued that it was fallacious to spin out 'industry' from 'education' and the logic was a specious economic doctrine. Issacs J., with unsparing sting and in fighting mood, stated and ref....
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.... a workman who travels in a tramcar a mile from his home to his factory is not more efficient for his daily task than if he walked ten yards, whereas his technical training has a direct effect in increasing output. If music or acting or personal transportation is admitted to be "industrial" because each is productive of wealth to the employer as his business undertaking, then an educational establishment stands on the same footing. But if education is excluded for the reason advanced, how are we to admit barbers, hairdressers, taxi-car drivers, furniture removers, and other occupations that readily suggest themselves? And yet the doctrine would admit manufactures of intoxicants and producers of degrading literature and pictures, because these tire considered to be "wealth"., The doctrine would concede, for instance, that establishments for the training of performing dogs, or of monkeys simulating human behaviour, would be "industrial," because one would have increased material wealth that is, a more valuable dog or monkey, in the sense that one could exchange it for more money. If parrots are taught to say "Pretty Polly" and to dance on their perch, that is, by concession, industri....
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....e extensively excerpted from the vigorous dissent because the same position holds good for India which AS emerging from feudal illiteracy to industrial education. In Gandhi's India basic education and handicraft merge and in the latter half of our century higher education involves field studies, factory training, house surgeoncy and clinical education, and, sans such technological training and education in humanities, industrial progress is self-condemned. If education and training are integral to industrial and agricultural activities, such services are part of industry even if high browism may be unhappy to acknowledge it. It is a class-conscious, inegalitarian outlook with an elitist aloofness which makes some people shrink from we accepting educational institutions, vocational or other as industries. The definition is wide, embraces training for industry which, in truth, ensconces all processes of producing goods and services by employeremployee cooperation. Education is the nidus of industrialization and Itself is industry. 86. We may consider certain aspects of this issue while dealing with later cases of our Court. Suffice it to say, the unmincing argument of Isaacs J....
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.... is para-trade or quasi-business, it is of no moment that it is undertaken in the private sector, joint sector, public sector, philanthropic sector or labour sector 'it is industry'. It is the human sector, the way the employer-employee a relations are set up and processed that gives rise to claims, demands, tensions, adjudications, settlements truce and peace in industry. That is the raison d' etre of industrial law itself. 89. Two seminal guidelines of great moment flow from this decision 1. the primary and predominant activity test; and 2, the integrated activity test. The concrete application of these two-fold tests is illustrated in the very case. We may set out in the concise words of Subba Rao J., the sum-up : "The result of the discussion may be summarised thus (1) The definition of "industry" in the Act is very comprehensive. It is in two parts : one part defines it from the standpoint of the employer and the other from the standpoint of the employee. If an activity falls under either part of the definition, it will be an industry within the meaning of the Act. (2) The history of industrial disputes and the legislation recognizes the basic concept t....
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....iduals and institutions. We do 'not see why. There can be private medical units to help in the control of epidemics for remuneration. Individuals may get the food articles purchased by them examined by the medical unit and take necessary action against guilty merchants. So too, they can take advantage of such a unit to prevent epidemics by having necessary inoculations and advice. This department also satisfies the other tests laid down by us, and is an industry within the meaning of the definition of 'industry" in the Act." Even the General Administration Department is 'industry'. Why ? "Every big company with different sections will have a general administration department. If the various departments collated with the department are industries, this department would also be a part of the industry. Indeed the efficient rendering of all the services would depend upon the proper working of this department, for, otherwise there would be confusion and chaos. The state Industrial Court in this case has held that all except five of the departments of the Corporation come under the definition of "industry" and if so, it follows that this department, deal....
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....f Physicians and Surgeons, Bombay; the group is thus run and managed by the appellant to provide medical relief and to promote the health of the people of Bombay." And yet the holding was that it was an Industry. Medical education, without mincing words, is 'industry'. It has no vulgarising import at all since the term 'industry as a technical one for the purpose of the Act, even as a masterpiece of painting is priceless aft but is 'goods' under the Sales Tax Law, without any philistinic import. Law abstracts certain attributes of persons or things and assigns Juridical values without any pejorative connotation about other aspects. The Court admonishes that : "Industrial adjudication has necessarily to be aware of the current of socioeconomic thought ground; it must recognise that in the modern welfare State healthy industrial relations are a matter of paramount importance and its essential function is to assist the State by helping a solution of industrial disputes which constitute a distinct and persistent, phenomenon of modern industrialised States. II attempting to solve industrial disputes industrial adjudication does not and should not adopt a ....
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....ith the help of employees is an undertaking. Such an activity generally involves the cooperation of the employer and the employees; and its object is the satisfaction of material human needs. It must be organised or arranged in a manner in which trade or business is generally organised or arranged. It must not be casual nor must it be for oneself nor for pleasure. Thus the manner in which the activity in question is organised or arranged, the condition of the co-operation between employer and the employee necessary for its success and its object to render material service to the community can be regarded as some of the features which are distinctive of activities to which s. 2(j) applies. Judged by this test there would be no difficulty in holding that the State is carrying on an undertaking when it runs the group of Hospitals in question." (p. 879) Again, "It is the character of the activity which decides the question as to whether the activity in question attracts the provision of Sec. 2(j); who conducts the activity and whether it is conducted for profit or not do not make a material difference." (p. 878) By these tests even a free or charitable hospital is an ind....
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....irect co-operation and the features of liberal professions were given as good reasons to barricade professional enterprises from the militant clamour for more by lay labour. The learned judge expressed himself on the first salvational plea : "When in the Hospital case this Court referred to the Organisation of the undertaking involving the co-operation of capital and labour or the employer and his employees, it obviously meant the co-operation essential and necessary for the purpose of rendering material service or for the purpose of production. It would be realised that the concept of industry postulates partnership between capital and labour or between the employer and his employees. It is under this partnership that the employer contributes his capital and the employees their labour and the joint contribution of capital and labour leads directly to the production which the industry has in view. In other words, the co-operation between capital and labour or between the employer and his employees which is treated as a working test in determining whether any activity amounts to an industry, is the cooperation which is directly involved in the production of goods or in the ....
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....marketing and advertising tasks are done. Which, out of this maze of chores, is direct? A battle may be lost if winter-wear were shoddy. Is the army tailor a direct contributory? 99. An engineer may lose a competitive contract if his typist typed wrongly or shabbily or despatched late. He is a direct contributory to the disaster. No lawyer or doctor can impress client or court if his public relations job or home work were poorly done, and that part depends on smaller men, adjuncts. Can the great talents in administration, profession, science or art shine if a secretary fades or faults ? The whole theory of direct co-operation is an improvisation which, with great respect, hardly impresses. 100. Indeed, Hidayatullah, C.J., in Gymkhana Club Employee Union ([1968] 1 S.C.R. 742) scouted the argument about direct nexus, making specific reference to the Solicitors' case : "........ The service of a solicitor was regarded as individual depending upon his personal qualifications and ability, to which the employees did not contribute directly or essentially. Their contribution, it was held, had no direct or essential nexus with the advice or services. In this way learned ....
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....l immunity from Labour's demand for social justice because learned professions have a halo also stands on sandy foundation and, perhaps, validates G. B. Shaw's witticism that an professions are conspiracies against the laity. After all, let us be realistic and recognise that we live in an age of experts alias professionals, each having his ethic, monopoly, prestige, power and profit. Proliferation of professions is a ubiquitous phenomenon and none but the tradition bound will agree that theirs is not a liberal profession. Lawyers have their code. So too medicos swearing by Hippocrates, chartered accountants and company secretaries and other autonomous nidi of know-how. 103. Sociological critics have tried to demythologize the learned professions. Perhaps they have exaggerated. Still it is there. The politics, of skill, not service of the people, is the current orientation, according to a recent book on 'Professions For the People': "The English professions in the eighteenth century were an acceptable successor to the feudal ideal of landed property as a means of earning a living. Like landed property, a professional "competence" conveniently "broke the d....
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....eed, in America, professionals advertise, hold a strict monopoly, charge heavy fees and wear humanitarianism as an altruist mask. In England a Royal Commission has been appointed to go into certain aspects of the working of the legal profession. 105. The observer, in a leading article 'WIGS ON THE GREEN" dated 15 February, 1976, wrote : "In preparing for the challenge of a Royal Commission, lawyers ought to realise how deep public disillusionment goes, how the faults of the legal system are magnified by the feeling that the legal profession is the most powerful pressure group-some would say a mutual protection society-in the land, with its loyal adherents in Westminster, Whitehall, and on the bench, like a great freemasonry designed to protect the status quo. It robs the client of the benefits of free competition among barristers for his custom. It confirms his impression that Her Majesty's courts, which he rightly regards as part of the service the State offers to all its citizens, are a private benefit society for lawyers. The fees that lawyers are paid, and the services that they give in return, must also be studied. A recent survey suggeste....
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....on of democracy. Professional turf is now ratified by the rule of law. If there is the case, it represents a significant development : the division of labour in society is again moving towards the legalisation of social status quo occupational role s." 108. All this adds up to the decanonisation of the noble professions. Assuming that a professional in our egalitarian ethos is like any other man of common clay plying a trade or business, we cannot assent to the cult of the elite in carving out islands of exception to 'industry', (1) A.I.R. 1976. S.C. 242 109. The more serious argument of exclusion urged to keep the professions out of the coils of industrial disputes and the employees' demands backed by agitations 'red in tooth and claw' is a sublimated version of the same argument. Professional expertise and excellence with its occupational autonomy, ideology, learning, bearing and morality, holds aloft a standard of service which centres round the individual doctor, lawyer, teacher or auditor. This reputation and quality of special service being of the essence, the co-operation of the workmen in this core activity of professional offices is absent. The cl....
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.... beyond the pale of 'industry' in our democracy. We mean no disrespect to the members of the professions. Even the judicial profession or administrative profession cannot escape the winds of social change. We may add that the modern world, particularly the third world, can hope for a human tomorrow only through professions for the people, through expertise at the service of the millions. Indian primitivism can be banished only by pro bono publico professions in the field of law, medicine, education, engineering and what not. But hat radicalism does not detract from the thesis that 'industry' does not spare professionals. Even so, the widest import may still self-exclude the little moffusil lawyer, the small rural medico or the country engineer, even though a hired sweeper or factotum assistant may work with him. We see no rationale in the claim to carve out islets. Look. A solicitor's firm or a lawyer's firm becomes successful not merely by the talent of a single lawyer but by the cooperative operations of several specialists, juniors and seniors. Likewise the ancillary services of competent stenographers, paralegal supportive services are equally important.....
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....of industry and industrial dispute. For this reason, which applies all along the line, to small professions, petty handicraftsmen, domestic servants and the like, the solicitor or doctor or rural engineer, even like the butcher, the baker and the candlestick maker, with an assistant or without, does not fall within the definition of industry. In regular industries, of course, even a few employees are enough to bring them within sec. 2(s). Otherwise automated industries will slip through the net. Education. 112. We will now move. on to a consideration of education as an industry try. If the triple tests of 'systematic activity, co-operation between employer and employee and production of goods and services were alone to be applied, a University, a college, a research institute or teaching institution will be an industry. But in University of Delhi([1961] 2 S.C.R. 703) it was held that the Industrial Tribunal was wrong in regarding the University as an industry because it would be inappropriate to describe education as an industrial activity. Gajendragadkar J. agreed in his. judgment that the employer employee test was satisfied and cooperation between the two was also pres....
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....titutions which employed them are outside the scope of the Act. In other words, if imparting education is an industry under S. 2(j), the bulk of the employees being outside the purview of the Act, the only disputes which can fall within the scope of the Act are those which arise between such institutions and their subordinate staff, the members of which" may fall under s. 2 (s) In our opinion, having regard to the fact that the work of education is primarily and exclusively carried on with the assistance of the labour and cooperation of teachers, the omission of the whole class of teachers, from the definition prescribed by s. 2(s) has an important bearing and significance in relation to the problem which we are considering. It could not have been the policy of the Act that education should be treated as industry for the benefit of a very minor and insignificant number of persons who may be employed by educational institutions to carry on the duties of the subordinate staff. Reading ss, 2(g), (j) and (s) together, we are inclined to hold that the work of education carried on by educational institutions like the University of Delhi is not an industry within the meaning of the Act." ....
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....clusion that education itself is not without its scope." 115. Another reason has also been adduced to reinforce this conclusion : It is well known that the University of Delhi and most other educational institutions are not formed or conducted for making profit; no doubt, the absence of profit motive would not take the work of any institution outside S. 2(j) if the requirements of the said definition are otherwise satisfied. We have referred to the absence of profit motive only to emphasise the fact that the work undertaken by such educational institutions differs from the normal concept of trade or business. Indeed, from a rational point of view, it would be regarded as inappropriate to describe education even as a profession. Education in its true aspect is more a mission and a vocation rather than a profession or trade or business, however wide may be the denotation of the two latter words under the Act. That is why we think it would be unreasonable to hold that educational institutions are employers within the meaning of s. 2(g), or that the work of teaching carried on by them is an industry under s. 2(j), because essentially, the creation of a well-educated healthy....
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....re of the activity. In the case of the university or an educational institution, the nature of the activity is, ex hypothesis education which is a service to the community. Ergo, the university is an industry. The error has crept in, if we may so say with great respect, in mixing up the numerical strength of the personnel with the nature of the activity. 120. Secondly there are a number of other activities of the University Administration, demonstrably industrial which are severable although ancillary to the main cultural enterprise. For instance, a university may have a large printing press as a separate but considerable establishment. It may have a large fleet of transport buses with an army of running staff. It may have a tremendous administrative strength of officers and clerical cadres. It may have karamcharis of various hues. As the Corporation of Nagpur has effectively ruled, these operations, viewed in severally or collectively, may be treated as industry. It would be strange, indeed, if a university has 50 transport buses, hiring drivers, conductors, cleaners and workshop technicians. How are they to be denied the benefits of the Act, especially when their work is separ....
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....and so viewed the ingredients of education are fulfilled. Education is, therefore, an industry and nothing can stand in the way of that conclusion. 123. It may well be said by realists in the cultural field that educational managements depend so much on governmental support and some of them charge such high fees that schools have become trade and managers merchants. Whether this will apply to universities or not, schools and colleges have been accused, at least in the, private sector, of being tarnished with trade motives. 124. Let us trade romantics for realities and see. With evening classes, correspondence courses, admissions unlimited, fees and government grants escalating, and certificates and degrees for prices, education legal, medical, technological, school level or collegiate-education-is riskless trade for cultural 'entrepreneurs and hapless posts of campus (industrial) unrest. Imaginary assumptions are experiments with untruth. 125. Our conclusion is that the University of Delhi case was wrongly decided and that education can be and is, in its institutional form, an industry. Are Charitable Institutions Industries ? 126. Can charity be 'industry....
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.... 129. 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 three philanthropic entities, we have itemised, fall for consideration only if they involve co-operation between employers and employees to produce and/or supply goods and/or services. We assume, all three do. The crucial difference is over the presence of charity in the quasi business nature of the activity. Shri Tarkunde, based on Safdarjung, submits that, ex hypothesi, charity frustrates commerciality and thereby deprives it of the character of industry. 130. It is common, ground that the first category of charities is disqualified for exemption. If a business is run for production and or supply of goods and services with an eye 'on profit, it is plainly an industry. The fact that the whole or substantial part of the profits so earned is diverted for purely charitable purposes does not affect the nature. of the economic activity which involves the cooperation of employer and employee and results in the production of goods and services. The workers are n....
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....-tax may have, social opinion may have. 32. 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, which employs workers like spinners and weavers and supplies cloth or other handicraft at concessional rates to needy rural consumers, may not qualify for exemption. Even 'so particular incidents may have to be closely probed before pronouncing with precision upon the nature of the activity. If cotton or yarn is given free to workers, if charkhas are made available free for families, if fair price is paid for the net product and substantial charity thus benefits the similar undertakings and commercial adventures do. To qualify for closely into the character of the enterprise. If employees are hired and their services are rewarded by wages-whether on cottage industry or factory basis-the enterprises become industries, even if some kind of concession is shown and even if the motive and project may be to encourage and help Door families and find them employment. A compassionate industrialist is nevertheless an industrialist. However....
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....ed 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 practices, bhajans, meditation and worship. Supposing, further, that outsiders are also invited daily or occasionally, to share in the spiritual proceedings. And, let us assume that all the inmates of the Ashram and members of the Order, invitees, guests, and other outside participants are fed, accommodated and looked after by the institution. In such a case, as often happens, the cooking and the cleaning, the bed-making and. service' may often be done, at least substantially by the Ashramites themselves. They may chant in spiritual ecstasy even as material goods and services are made and served. They may affectionately look after the guests, and, all this they may do, not for wages but for the chance to propitiate the Master, work selflessly and acquire spiritual grace. It may well be that they may have surrendered their lucrative employment to come into the holy institution. It may also be....
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....orately 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 test of an 'industry'. The compassionate motive and "he charitable inspiration are noble but extraneous. Indeed', medical relief for human beings made available free by regular hospitals, run by government or philanthropists, employing doctors and supportive staff and business-like terms, may not qualify for exemption from industry. Service to animals cannot be on a higher footing than service to humans. Nor is it possible to contend that love of animals is religious or spiritual any more than love of human-beings is. A pinjrapole is no church, mosque or temple. Therefore, without going into the dairying aspects, income and expenditure and other features of Bombay Pinjrapole, one may hold that the institution is an industry. After all, the employees are engaged, on ordinary economic terms and with conditions of service as in other business institutions and the activities also have organ....
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....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 137. Does research involve collaboration between employer and employee ? It does. The employer is the institution, the employees are the scientists, para-scientists and other personnel. Is scientific research service ? Undoubtedly it is. Its discoveries are valuable contributions to the wealth of the nation. Such discoveries may be sold for a heavy price in the industrial or other markets. Technology has to be plate for and technological inventions and innovations may be patented and sold. In our scientific and technological age nothing has more cash value, as intangible goods and invaluable services, than discoveries. For instance, the discoveries of Thomas Alva Edison made him fabulously rich. It has been said that his brain had the highest cash value in history for he made the world vibrate with the miraculous discovery of recorded, sound. Unlike most inventors, he did not have to wait to get his reward in heaven; he received, it munificently on this gratified and grateful earth, thanks to conversion ....
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....s. 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 for exemption. For clubs gentlemen clubs proprietary clubs service clubs investment clubs, sports clubs, art clubs military clubs or other brands of recreational associations when x-rayed from the industrial angle project a picture on the screen typical of employers hirings employees for wages for rendering services and/or supplying goods on a systematic basis at specified hours. There is a co-operation the club management providing the capital, the raw materia lthe appliances and auxiliaries and the cooks, waiters, bell boys, pickers bar maids or other servants making available enjoyable eats, pleasures and other permissible services for price paid by way of subscriptions or bills charged. The club life' the warm company, the enrichment of the spirits and freshening of the mind are there But these blessings do not contradict the co-existence of....
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....d if we may so describe them to identify, not at all to be pejorative,-we must elucidate. 142. 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 low-income, groups quench their cultural thirst by forming gregarious organisations mainly for recreation. A few books and magazines, a manuscript house magazine contributed by and circulated among members, a football or volley ball game in the evenings-not golf, billiards or other expensive games a music or drama group, an annual day, a competition and pretty little prizes and family get together and even organising occasional meetings inviting V.I.Ps.-these tiny yet luscent cultural balls dot our proletarian cheerlessness. And these hopeful organisms, if fostered, give a mass spread for our national awakening for those for whom no developmental bells yet toll. 143. Even these people's organs cannot be non-industries unless one strict condition is fulfilled. They should be-and usually are-self-serving. They are poor men's clubs without the wherewithal of a Gyankhana or C.C.I. which reacted this court for adjudic....
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.... It offers choice facilities for golf, tennis and billiards, arranges dances, dinners and refreshments, entertains and accommodates guests and conducts tournaments for members and non-members. 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 substance is the thing. A night club for priced nocturnal sex is a lascivious 'industry'. But a literary club, meeting weekly to read or discuss poetry, hiring a venue and running solely by the self-help of the participants, is not. Hidayatullah C.J., in Gymkhana ruled that the club was not an 'industry'. Reason ? 'An industry is thus said to involve cooperation between employer and employees for the object of satisfying material human needs but not for oneself nor for pleasure nor necessarily for profit.' "It is not of any consequence that there is. no profit motive because that is considered immaterial. It is also true that the affairs of the club are organised in the way business is orgainsed, and that there is production o....
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....e 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'. 148. We are intrigued by this reason. The ingredients necessary for an industry are present here and yet it is declared a non-industry because the club belongs to members only. A company belongs to the shareholders only; a co-operative belongs to the share members only; a firm of experts belongs to the partners only. And yet, if they employ workmen with whose co-operation goods and services are made available to a section of the community and the operations are organised in the manner typical of business method and Organisation, the conclusion is irresistible that an 'industry' emerges. Likewise, the members of a club may own the institution and become the employers for that reason. It is transcendental logic to jettison the inference, of an 'industry' from such a factual situation on the ....
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....rs 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. 150. 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, which was a co-operative association which pooled the savings of small people and made loans to its members at low interest, was considered from the point of view of industry. Admittedly, they were credit unions incorporated as co-operative societies and the thinking of Mason J., was that such institutions were industrial in character. The industrial mechanism of society according to Starke J, included "all those bodies 'of men associated, in various degrees of competition and cooperation, to win their living by providing the community with some service which it requires' Mason J., we....
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.... 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." 155. 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 institute. Primarily, it was an institution for research and training. therefore, the Court concluded, the institution could not be described as industry. Non sequitur.' Hospital facility, research products and training services are surely services and hence industry It is difficult to agree that a hospital is not an industry. In the third case the same factors plus the prohibition of profit are relied on by the Court. We find it difficult to hold that absence of, profit,,or functions. of training and research, take the instit....
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....rvice. 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.' 158. 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 placed accent on the non-profit making members club as being outside the pale of trade or industry. We demur to this proposition. 159. Another intriguing reasoning in the judgment is that the Court has stated "it is not necessary that there must be a profit motive but the enterprises must be analogous to trade or business in a commercial sense". However, somewhat contrary to this reasoning we find, in the concluding part of the judgment, emphasis on the non-profit making aspect of ....
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....rds 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 new and varied activities as part of its social welfare policy. The concept of industry, which is intended to be a convenient and effective tool in the hands of industrial adjudication for bringing about industrial peace and harmony, would lose its capacity for adjustment and change. It would be petrified and robbed of its dynamic content. The Court should, therefore, so far as possible avoid formulating or adopting generalisations and hesitate to cast the concept of industry in a narrow rigid mou....
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....d 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. 162. 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 abolish blurred edges, illumine penumbral areas and over-rule what we regard as wrong. Hesitancy, half-tones and hunting with the hounds and running with the hare can claim heavy penalty in the shape of industrial confusion, adjudicatory quandary and administrative perplexity at a time when the nation is striving to promote employment through diverse strategies which need for their smooth fulfillment, less stress and distress, more mutual understa....
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.... 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 from the scope of sec. 2 (j). (b) A restricted category of professions, clubs, cooperatives and even Gurukulas and little research labs, may qualify for exemption if in simple ventures substantially and going by the dominant nature criterion sub-stantatively, in single simple ventures, no employees are entertained but....
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....olitical 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 Supply and Sewerage Board-appeal, we are not disposing of the others on the merits. We dismiss that appeal with costs and direct that all the others be posted before a smaller bench for disposal on the merits in accordance wit....
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.... attractive argument based on a well-known 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. 169. The Court expressed its opinion in a characteristically clear tone by saying that if the object and scope of the Industrial Disputes Act are considered, there would be no difficulty in holding that the relevant words of wide import have been deliberately used by ....
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....zdoor 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(j). The judgment concludes with the summing-up that, as a workin....
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....here 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 ? 173. 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. 174. 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 undertaken ....
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....hich one must, according 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 n....
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....eral profession like that of an attorney within the 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 em....
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....ly organised or arranged. I have already said enough on that question. 178. 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. 179. 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. 180. 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 t....