TaxTMI 
TaxTMI 
1997 (7) TMI 687
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....that the Telephone Nigam Limited, Bombay is not an 'industry'. It, therefore, has no jurisdiction to adjudicate the dispute. Prabhadevi Exchange had a total strength of 3000 employees of the Telecommunication Department, working in three shifts. As per the Administrative Instructions issued by the Government, for the first shift there should be a '3A' type canteen, for the second shift 'A' type canteen and for the third shift there should be 'C' type canteen. It was averred that for Type '3A' canteen, there should be 57 employees, but only 24 employees were working on April 27, 1989. The claim of the petitioner is that the dismissed employees had joined the service in 1987. They are claiming wages as per the directions of this Court, i.e., as per the Fourth Pay Commission's recommendations. Since they were insisting upon payment of the wages, it is alleged, the services of five employees were terminated without giving any notice or giving any retrenchment compensation as enjoined by Section 25-F of the Act. Therefore, they sought reinstatement into service with full back wages and with continuity of service. The respondents, on the other ....
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....on. The question is : whether the view is correct in law? This Court is aware of the decision in Bangalore Water Supply case, AIR 1978 SC 548, in which this Court had held the test to determine whether an establishment is an 'industry' within the meaning of the Act. Therein, the employees of the appellant-Board were fined for misconduct and the fine was recovered from them. They filed an application under Section 33-C(2) of the Act. The question was whether the Tribunal has jurisdiction under Section 33-C(2) of the Act? The High Court had held it to be an industry and, therefore, the application was maintainable. On appeal, this Court laid down the tests as under: The term "analogous to the trade or business" could not cut down the scope of the term "industry". The said words can reasonably mean only activity which results in goods made and manufactured or service rendered which are capable of being converted into saleable ones. They must be capable of entering the word of "res commercium", although they may be kept out of the market for some reason. It is not the motive of an activity in making goods or running a service but the possibility of making them m....
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....e in a manner which will leave no doubt as to its intention. That alone can afford a satisfactory solution to the question which has agitated and perplexed the judiciary at all levels. Hospital Mazdoor Sabha was correctly decided insofar as it held that the JJ Group of Hospitals was an industry but 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. There is no justification for excepting the categories of public utility activities undertaken by the Government in the exercise of its inalienable functions under the Constitution, call it regal or sovereign or by any other name, 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 is beside the point to enquire whether the activity is undertaken by the State, and further, if so, whether it is undertaken in fulfilment of the State's constitutional obligations or in discharge of its constitutional functions. In fact, to concede the benefit of an exception to the State's activities which are in the nature of sovereign functions is real....
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....e definition of industry. The very same principles must yield the result that just as the consideration as to who conducts the 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 on the question whether the activity is an industry. The motive which propels the activity is yet another step removed and ex hypothesi can have no relevance on the question as to what is the nature of the activity. It is never true to say that the nature of the activities is charitable. The subjective motive force of an activity can be charity but for the purpose of deciding whether an activity is an industry one has to look at the process involved in the activity, objectively. The jural foundation of any attempt to except charitable enterprises from the scope of the definition can only be that such enterprises are not undertaken for profit. But then, that clearly, is to introduce the profit concept by a side wind, a concept which has been rejected consistently o....
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....ich is almost impossible of application with any degree of assurance or certitude. It will be as much true to say that the Solicitor's Assistant, Managing Clerk, Librarian and the Typist do not directly contribute to the intellectual and product which is a creation of his personal professional skill, as that, without their active assistance and co-operation it will be impossible for him to function effectively. The unhappy state of affairs in which the law is marooned will continue to baffle the skilled professional and his employees alike as also the Judge who has to perform the unenviable task of sitting in judgment over the directness of the cooperation between the employer and the employee, until such time as the Legislature decides to manifest its intention by the use of clear and indubious language. Beside the fact that this Court has so held in National Union of Commercial Employees the Legislature will find a plausible case for exempting the learned and liberal professions of Lawyers, Solicitors, Doctors, Engineers, Chartered Accountants and the like from the operation of industrial laws. But until that happens, in the present state of the law it is difficult by judicia....
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....business. This take into the fold of 'industry' 'undertakings, calling and services, adventures 'analogous to the carrying on of trade or business'. All features, other than the methodology of carrying on the activity viz. in organizing the co-operation between employer and employee, may be dissimilar. It does not matter, if on 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 outer 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 more. (a) The consequences are : (i) professions, (ii) clubs, (iii) educational institutions, (iv) cooperatives, (v) research institutes, (vi) charitable projects, and (vii) other kindred adventures, if they fulfil the triple tests listed in I (supra), cannot be exempted from the scope of Section 2(j). ....
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.... from the scope of the Act categories which otherwise may be covered thereby. 5. It is not necessary to refer to the dissenting judgment. Beg, C.J. in his concurring judgment, at page 221, Placitum E to G , has held thus: I would also like to make a few observations about the so-called "sovereign" functions which have been placed outside the field of industry. I do not feel happy about the use of the term "sovereign" here. I think that the term 'sovereign' should be reserved, technically and more correctly, for the sphere of ultimate decisions. Sovereignty operates on a sovereign plane of its own as suggested in Keshavananda Bharati's case supported by a quotation from Ernest Barker's "Social and Political Theory". Again the term "Regal", from which the term "sovereign" functions appears to be derived, seems to be a misfit in a Republic where the citizen shares the political sovereignty in which he has even a legal share, however small, inasmuch as he exercises the right to vote. What is meant by the use of the term "sovereign", in relation to the activities of the State, is more accurately brought out by using the term "governmental" functions al....
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....har (1969)IILLJ549SC , this Court held that the Government Company is distinct from Government. In Praga Tools Corporation v. C.V. Imanual (1969)IILLJ479SC , the employees were held not entitled to avail the remedy under Article 226 of the Constitution. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (1975)ILLJ399SC , break-through was effected by a Constitution Bench in considering whether the Oil and Natural Commission, the Industrial Financial Corporation or the Life Insurance Corporation is an 'authority' within the meaning of Article 12 of the Constitution and whether the employees working in the Corporation are entitled to the protection of judicial review under Article 14. It was answered in favour of the employees. In separate but concurrent judgment, Mathew, J. laid the foundation demolishing the autonomous status and non-amenability to judicial review of the actions of corporate sector and held that when a Corporation was created by a statute, its rules or instructions partake the statutory character like a subordinate legislation. Therefore, they are to act consistently with the Rules or Regulations made under the Act or by the statutory authority. 7A. ....
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...., the High Court quashed the order and directed his reinstatement with full back-wages. This Court, on these facts, had held that "in cases where there is an element of public employment and service or support by statute or something in the nature of an office or a status, which is capable of protection, then irrespective of the terminology used, and even though in some inter parties aspects the relationship may be called that of master and servant, there may be essential procedural requirement to be observed on grounds of natural justice". The Warehousing Corporation was held to be an authority and the dismissal, without conducting an enquiry and without an opportunity to lead evidence for the proposed punishment given to the respondent, was bad in law. Therefore, the appeal was dismissed and the judgment of the High Court was upheld. Chinappa Reddy, J. in his concurring judgment had held that there is hardly any distinction, on the principle, between a person directly under the employment of the Government and a person under the employment of an agency or instrumentality of the Government or a Corporation set up under a statute or incorporated but wholly owned by the Government. ....
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....r instrumentality or agency or Corporation aggregate or Corporation sole is not of sole material relevance to decide whether it is by or under the control of the appropriate Government under the Act. (2) If it is a statutory Corporation, it is an instrumentality or agency of the State. If it is a company owned wholly or partially by a share capital, floated from public exchequer, it gives indicia that it is controlled by or under the authority of the appropriate Government. (3) In commercial activities carried on by a Corporation established by or under the control of the appropriate Government having protection under Articles 14 and 19(2), it is an instrumentality or agency of the State. (4) The State is a service Corporation. It acts through its instrumentalities, agencies or persons - natural or judicial. (5) The governing power, wherever located, must be subject to the fundamental constitutional limitations and abide by the principles laid in the Directive Principles. (6) The framework of service regulations made in the appropriate rules or regulations should be consistent with and subject to the sa....
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....9SC , the Board was held to be an 'industry' and the action was amenable to adjudication under the Contract Labour (Regulation and Abolition) Act. 9. It is, therefore, clear that there have been two streams of thinking simultaneously in the process of development to give protection to the employees of the Corporation. Its actions are controlled as an instrumentality of the State and the rules are made amenable to judicial review. Where there exists no statutory or analogous rules/instructions, the provisions of the Act get attracted. The employees are entitled to avail constitutional remedy under Article 226 or 32 or 136, as the case may be. The remedy of judicial review to every citizen or every person has expressly been provided in the Constitution. It is a fundamental right of every citizen. In the absence of statutory /administrative instruction in operation, the remedy of reference under Section 10 of the Act is available. Therefore, two streams, namely, remedy under the Act by way of reference and remedy of judicial redressal by way of proceedings under Article 226 or a petition filed before the Administrative Tribunal to the aggrieved persons, are co-existing. If ....
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....ctive, this Court had approached the problem in T. Joseph's case AIR 1996 SCW 1365 T. Joseph's case was a case relating to the departmental employee whose services was dispensed with. Considering the rules in operation in that behalf, it was held that the Telephone Department is not an industry. The appointment orders were given under the rules. In that behalf, it was held that India is a Sovereign, Socialist, Secular Democratic Republic. It has to establish an egalitarian social order under the rule of law. The welfare measures partake the character of sovereign functions and the traditional duty to maintain law and order is no longer the concept of the State. Directive Principles of the State policy enjoin the State to undertake diverse duties envisaged under Part IV of the Constitution. One of the duties of the State is to provide Telecommunication services to the general public an amenity; so, it is an essential part of the sovereign functions of the State as a welfare State. In Physical Research Laboratory v. K.G. Sharma CA No. 2663/97 decided on April 8, 1997 AIR 1997 SCW 1594 the question was whether the appellant who conducted research in a scientific laboratory was....