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Judgment
This is an appeal against the judgment of Mahajan, J., of the Punjab High Court in its Circuit Bench at New Delhi in Writ Petition No. 652-D of 1964, which was field by the Appellant.
(2) The appellant is employed by Messrs. S. Bishan Singh & Sons, who are stated in the petition to be manufacturers of "Kharaons". It is the case of the appellant that he is employed by this firm which manufactures Kharaons which are put in the market for sale. His job is to put the rubber, the canvass and the nails to the Kharaons, which are being manufactured.
(3) On the termination of his services by the firm, the appellant made an application (L. C. A. No. 519 of 1964), u/s 33-C(2) of the Industrial Disputes Act, for 9[V1]1/2 months'' wages as retrenchment compensation for 15 years service. The application was opposed by the firm mainly on the ground that the business carried on by the firm was not an "industry" within the meaning of Section 2(j) of the Industrial Disputes Act. This contention was accepted by the Labour Court, which by its order dated 14th August, 1964, dismissed the application and it was against this application that the appellant filed the above-mentioned writ petition in the Punjab High Court in its Circuit Bench at New Delhi.
(4) The learned Single Judge, who dealt with this petition relied upon a decision of the Division Bench of the Mysore High Court reported in P. M. Murugappa Mudallar Rathina Mudallar & Sons v. Raju Mudallar (P) and others, (1965) 1 Lab Lj 489 (491) (Mys) to which my Lord the Chief Justice was a party. That was a case of a reference u/s 10(1)(c) of the Industrial Disputes Act, 1947, where the question to be considered was whether there existed an industrial dispute within the meaning of Section 2(k) of the aforesaid Act. That was the case of a single workman as in the present case. The learned Chief Justice came to the conclusion that there was no industrial dispute within the meaning of 2(k) of the aforesaid Act but he did not go into the question whether an enterprise with only one workman would be an "industry" or not within the meaning of Section 2(j) of the said Act. Bhat, J., however, by a separate judgment, went into that question and came to the conclusion that such an enterprise where only one workman was employed would not be an industry.
(5) Mr. A. K. Jain, learned counsel for the appellant, has drawn our attention first to the Preamble of the said Act which makes provision for the investigation and settlement of industrial disputes and "for certain other purposes" and his contention is that for these other be an industrial dispute within the meaning of the said Act and it will be enough if there is an industry within the meaning of Section 2(j). His contention is that the definition of industry as given in the Act is wide enough to include an enterprise where only one person is employed.
(6) He has cited to us first a decision of their Lordships of the Supreme Court reported as The The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, , where Gajendragadkar. J., as he hen was observed:
"We have yet to decide which are the attributes the presence of which makes an activity an undertaking within S. 2(j), on the ground that it is analogous to trade or business. It is difficult to state these possible attributes definitely or exhaustively; as a working principle it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking. Such an activity generally involves the co-operation of the employer and the employees; and its object is satisfaction of material human needs. It must be organized or arranged in a manner in which trade or business is generally organized 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 organized or arranged, the condition of 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 Section 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." This decision was affirmed in another case before the Supreme Court reported as The Corporation of the City of Nagpur Vs. Its Employees, , where Subba Rao, j., as he then was, has summarised the earlier decision in these words:
"The next question is whether activity of the Corporation is not industry" unless it shares the common characteristics of an industry. The following five characteristics are stated to be the conditions implicit in the definition (i) the activity must concern the production or distribution of goods or services; (ii) it must be to serve others but not to oneself; (iii) it must involve co-operative effort, between employer and employee, between capital and labour; (iv) it must be done as a commercial transaction; and (v) it must not be in exercise of purely governmental functions." (7) Another decision of the Supreme Court, which has been cited to us is The National Union of Commercial Employees and Another Vs. M.R. Meher, Industrial Tribunal, Bombay and Others, , where the position has been summarised in the following words:--
"when in the The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, , this Court referred to the orgainsation 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 the 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 co-operation which is directly involved in the production of goods or in the rendering of service. It cannot be suggested that every form or aspect of human activity in which capital and labour co-operate or employer and employees assist each other is an industry. The distinguishing feature of an industry is that for the production of goods or for the rendering of service, co-operation between capital and labour or between the employer and his employees must be direct and must be essential." (8) The essential test and what has been described as the distinguishing feature of an industry is that there is co-operation between capital and labour or between the employer and his employees for the production of goods and such co-operation must be direct and essential.
(9) Section 2(j) of the Industrial Disputes Act defines industry as meaning any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen, the words are clearly widest amplitude and from these words no distinction can be drawn while determining whether a particular enterprise is an industry or not from the mere fact that only one employee is employed in the enterprise. What has to be seen is whether as a direct result of the co-operation between capital and labour goods are produced for sale and for consumption by the public. Looking at this case from this aspect of the matter, we are of the view that the business carried on by the aforesaid firm is an industry within the meaning of Section 2(j) of the Industrial Disputes Act, and Therefore, the appellant was entitled to make an application before the Labour Court and invoke the provisions of Section 33C(2) of the said Act.
(10) As stated above, the Industrial Disputes Act makes provision not only for the investigation and settlement of industrial disputes, but also "for certain other purposes hereinafter appearing". In our opinion, the provision made in Section 33C of the said Act is one such other purpose and for the purpose of invoking this provision, the question as to whether there is an industrial dispute within the meaning of the Act is irrelevant. All that has to be seen is whether the person making application under Clause (2) of 33C is a "workman" within the meaning of Section 2(s) and the person from whom the benefit is to be derived is an "employer" within the meaning of Section 2(g) of the said Act. Looking at the definition of "workman" and "employer", one finds that the expression "industrial dispute" has not been used. The expression that has been used is "industry". Whether a single workman out of a large body of workmen employed in a particular concern or whether the only workman employed in a concern can raise an industrial dispute is not a matter which calls for our consideration in this appeal. Bhat, J., in the aforesaid judgment of the Mysore High Court, has correctly held that the important test for deciding whether any business, trade or a calling of an employer constitutes an industry within the meaning of the Act is the character of the activities indicated by the words included in the definition of "industry". But, with respect we do not agree with him when he says that the form and orgainsation in relation to the employed labour force as an active and creative agent for achieving the fruits of the activity" is a part of this test. Nor do we agree with him, when he says that the activity of the "industry" should be predominantly carried on by employment of organized labour force for the production or distribution of goods or for rendering of material services to the community at large or a part of such community. In our view, the definition of "industry" is wide enough to include an activity pertaining to or in relation to any business, etc., irrespective of whether the number of persons employed is one or more and we are of the view that a business, etc., employing only one workman will be an industry so long as it fulfills the tests which have been enumerated by the present Chief Justice of India in the case of The Corporation of the City of Nagpur Vs. Its Employees, . The question of the number of employees or of an organized labour force does not arise.
(11) The case before us fulfills all the conditions as laid down by the Supreme Court because the activity concerns the production or distribution of goods; it is to serve others and not oneself; it involves co-operative effort between employer and employee, between capital and labour; it is done as a commercial transaction and it is not in exercise of purely governmental functions.
(12) We, Therefore, allow the appeal, set aside the order of the learned Single Judge and of the Labour Court and direct the Labour Court to determine the second issue framed by it on merits. No order as to costs.
(13) Appeal allowed.