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Judgment
S.J. Mukhopadhaya, J.—As all these appeals arise out of a common order, they were heard together and disposed of by this common
judgment.
It appears that the appellants were working on daily wage basis in the State Farm Corporation of India Ltd. (hereinafter referred to as the
Corporation"") as
agricultural Mates or Pump Operators or Helpers. The Management of the Corporation were dealing with agriculture. All the workers numbering
more than 800 resorted to strike on 22.1.1981 raising various demands like wage increase, holidays, festival advance, filling up of vacant post,
provident fund, etc. While they were on strike, a Settlement was reached between the Management and the Union of 27.4.1981 u/s 12(3) of the
Industrial Disputes Act, 1947. By the said Settlement, provisions were made for provident fund, wages for weekly holiday, festival advance, re-
employment of workers etc. It was agreed upon that the Mates, Pump Operators and Helpers are not be to continued further, as per the orders
issued by the Management of the Corporation at Delhi.
Pursuant to the Settlement, while all the other employees were taken back in service, appellants, who were Pump Operators and Helpers,
having not taken back and thereby they have been retrenched from service, the Government of Tamil Nadu, by different Government Orders
issued on 12.1.1984, made individual references in regard to each workman on the question whether non employment of 33 workers is justified; if
not, to what relief they are entitled to.
The II Additional Labour Court, Madras, on hearing the parties and on appreciation of evidence, by common award dated 26.3.1987, having
answered the award in favour of the workmen (appellants herein), held that non-employment (retrenchment) of the workmen was in violation of
Section 25-F of the Industrial Disputes Act.
The Corporation challenged the common award before this Court by filing different writ petitions. The learned single Judge, by the impugned
common order dated 1.8.1996, held that the award was bad and set aside the award on two grounds, viz. agricultural operation do not fall within
the purview of Section 2(j) and thereby the Corporation cannot be termed as an ''industry'' as defined u/s 2(j) of the Industrial Disputes Act; and in
view of the Settlement reached u/s 12(3) of the Industrial Disputes Act, the workmen cannot raise an industrial dispute.
The learned Counsel appearing on behalf of the appellant(s) submitted that the definition of ''industry'' as noticed by the learned single Judge was
never given effect to and thereby, the learned single Judge erred in coming to a conclusion that the Corporation do not fall within the definition of
''industry''. It was further submitted that a Settlement made u/s 12(3) do not cover the question of retrenchment.
The learned Counsel appearing on behalf of the Corporation opposed the appeal on the following grounds:
(i) subsequent legislation can be looked at to ascertain proper interpretation to be put upon the earlier Act. Reliance is placed on the Supreme
Court decision in State of Bihar Vs. S.K. Roy, and T. Manickam & Co. v. State of Tamil Nadu AIR 1971 SC 518;
(ii) a Settlement under Industrial Disputes Act is binding on all the parties and no industrial dispute can be raised u/s 10 of the Act against the
essence of such Settlement. In this regard, reliance is placed on the Supreme Court decision in Jaihind Roadways v. MRMT & General Kamgar
Union 2005 III LLJ 1020 (SC); and
(iii) the workmen have failed to prove that they have completed 240 days of continuous service to derive advantage of Section 25F of the
Industrial Disputes Act. Burden of proving continuous work for 240 days is on the workman and not on the Management. He relied upon the
Supreme Court decisions in H.U.D.A. Vs. Jagmal Singh, and Smt. Kanta (deceased) through LRs. Vs. MTNL, - Delhi etc.
We have heard the learned Counsel for the parties and perused the records.
It will be evident from the impugned order that the learned singe Judge noticed the so-called amended Section 2(j)(1) to come to a conclusion
that the Corporation do not come within the definition of ''industry''. The following amendment was noticed as Sub-section 2(j)(1), which reads as
under:
any agricultural operation, except where such agricultural operation is carried on in an integrated manner with any other activity (being any such
activity as is referred to in the foregoing provisions of this Clause) and such other activity is the predominant one.
Explanation: For the purposes of this sub-clause, ""agricultural operation"" does not include any activity carried on in a plantation as defined in
Clause (f) of Section 2 of the Plantations Labour Act, 1951 (69 of 1951).
The question as to whether an agricultural industry falls within the definition of ''industry'', fell for consideration before different Courts from
time to time.
In the Bombay Industrial Relations Act, 1946, ''agriculture'' and ''agricultural operations'' have been specifically included in Section 3(9) in the
definition of ''industry''. But, in the Industrial Disputes Act, 1947, ''agriculture'' has neither been included nor excluded.
In D.N. Banerji Vs. P.R. Mukherjee and Others, , the Supreme Court observed that non-technical and ordinary meaning of ''industry'' is ''an
undertaking where capital and labour co-operate with each other for the purpose of producing wealth in the shape of goods, machines, tools etc'',
and for making profits, an industry in this sense, includes agriculture, horticulture, etc.
In Harinagar Cane Farm and Others Vs. State of Bihar and Others, , the Court left the question, whether all agriculture and operations
connected with it are included within the definition of industry or not, undecided. But, on the facts of the case, the activities of the two companies
registered under the Indian Companies Act, which were engaged in ''agricultural operations'', i.e., one for production of sugarcane, wheat, paddy
and other articles for sale in the market, to the consumers, and the other producing sugarcane for use in its sugar factories, were held to be falling
within the definition of industry, because the companies had invested capital for carrying on their ''agricultural operations'' for the purpose of making
profit and the workmen employed by them in the respective operations, contributed for the production of agricultural commodities, which brought
in profit to the Companies.
In Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, , the Supreme Court held that any activity connected with
''agriculture'' or ''agricultural operations'' affecting ''industrial and labour disputes'' or ''welfare of labour'', might fall within the ambit of industry, if it
satisfies the following triple test laid down therein.
''Industry'' as defined in Section 2(j) and explained in D.N. Banerji Vs. P.R. Mukherjee and Others, has a wide import.
(a) Where (i) systematic activity, (ii) organized by co-operation between employer and employee (the direct and substantial element is chimerical)
(iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive
of material things or services geared to celestial bliss i.e. making, on a large scale prasad or food) prima facie, there is an industry in that enterprise.
(b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector.
(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations.
(d) If the organization is a trade or business it does not cease to be one because of philanthrophy animating the undertaking.
The Labour Court, having noticed that the activities connected with the agriculture and agricultural operations will effect industrial and labour
dispute, came to a definite conclusion that the activities of the Corporation at Melchengam amounts to an ''industry''. The learned single Judge
altered such finding only on the basis of so-called definition of industry said to have been made u/s 2(j)(1). In fact, after the decision of the
Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa, a pragmatic definition was attempted in the Industrial Relations
Bill 1978, besides the Bill lapsed on the dissolution of the Parliament in August 1979. Subsequently, by Act 46 of 1982, Clause 2(j) was ordered
to be substituted in the manner as quoted above. But the said provision was never given effect to and the meaning of an ''industry'', as originally
defined u/s 2(j), thereby continued, which reads as under:
(j) ''industry'' means any business, trade, undertaking, manufacture or calling of employers, and includes any calling, service, employment,
handicraft, or industrial occupation or avocation of workmen.
Section 2(j)(1) having never been given effect, we hold that the learned single Judge should not have relied upon the said provision to come to a
different meaning of ''industry''.
In State of Bihar Vs. S.K. Roy, , the Supreme Court held that when there is obscurity or ambiguity in the earlier Act, subsequent legislation
can be looked at to ascertain proper interpretation to be put upon earlier Act.
In T. Manickam & Co. v. State of Tamil Nadu AIR 1971 SC 518, similar view was taken by the Supreme Court that in case of ambiguous
provision, for the purpose of proper construction, useful aid of subsequent amendment can be taken.
In the present case, as the subsequent amendment has never been given effect to and there is no ambiguity in the earlier definition of ''industry'',
we are of the view that there was no occasion for the learned single Judge to notice the subsequent definition to come to a different conclusion.
So far as the Settlement is concerned, it will be evident from the Settlement dated 27.4.1981 that the terms of Settlement relates to the
following issues:
(i) Provident Fund;
(ii) Wages for weekly holiday;
(iii) Festival advance;
(iv) Filling up vacant post;
(v) Maternity Benefit Act;
(vi) Construction of houses for the workmen;
(vii) Wage increase;
(viii) National and Festival Holidays; and
(ix) Re-employment of workers.
None of the aforesaid terms of Settlement relates to non- employment, amounting to retrenchment. Therefore, the Corporation cannot derive
advantage of the Settlement to deny the benefit of Section 25F to an employee.
From paragraph 10 the said Settlement, it will be evident that while the Settlement was made, that was the first time the Management decided to
retrench the Mates, Pump Operators and Helpers, as evident from the relevant portion of paragraph 10 and quoted here under:
The Management are very strong in holding that the categories of Mates, Pump Operators and Helpers cannot be continued any further as per the
orders issued by their higher Ups in Delhi.
It is a settled law that effect of Settlement dispute between the workmen and the employer is binding on all the parties, including those who are
not parties to the Settlement. Reliance was placed on the decision in Jaihind Roadways v. MRMT & General Kamgar Union 2005 III LLJ 1020
(SC). But, if the Settlement is against any provision of the Statute or Act or Constitution, one cannot derive advantage of the Settlement to deny
the benefit, to which, an employee is entitled to under the Statute or Act or Constitution. A workman of an industry, if continuously work for more
than 240 days in one calendar year and if he is retrenched from service without notice or notice pay, as stipulated u/s 25F, the Management cannot
deny the benefit of Section 25F on the ground of Settlement reached either u/s 12 or Section 18 of the Act.
The learned single Judge, having failed to notice the fact that the Settlement does not relate to non-employment amounting to retrenchment and
that the Settlement cannot be used to deny the benefit u/s 25F, we have no other option, but to set aside the order passed by the learned single
Judge.
The learned Counsel appearing on behalf of the Corporation vehemently submitted that many of the workmen may not have completed 240
days in a calendar year and this matter has not been looked into. But, we are not inclined to accept such submission at this appellate stage, as no
such argument was advanced either before the Labour Court or before the learned single Judge that one or other workman has not completed 240
days of service in one or other calendar year. Further, having accepted in the Bar by the learned Counsel for the Corporation that the workmen
were working since 1971 and 1972 and they were not allowed to work after 22.1.1981, viz. the day they proceeded on strike, it is very difficult to
presume that one or other has not worked for 240 days in a particular calendar year.
In view of the discussion and finding as made above, we have no other option but to set aside the order dated 1.8.1996 passed by the learned
single Judge and the same is accordingly, set aside. It is informed that the Corporation is functioning at Delhi, but has closed its agricultural farm at
Melchengam. If it is so, the workmen will be entitled to the benefits which other similarly situated persons were allowed, in view of the award
dated 26.3.1987 passed by the Labour Court.
In the result, the writ appeals are allowed with the above said observation. But, there shall be no order as to costs.