The Municipal Committee, Patiala vs The State of Punjab and others

D.S. Tewatia, J.—The petitioner, the Municipal Committee, Patiala, is the employer of sweepers impleaded in this writ petition through the secretary of their Union, respondent No. 2. Certain dispute arose between the petitioner and its sweeper employees and respondent No. 2, treating the same as an industrial dispute, represented to the Punjab Government, respondent No. 1, to refer the said dispute to the Industrial Tribunal, Punjab, for adjudication. Respondent No. 1, vide notification, dated 14th October, 1968 (annexure 2 to the return of the State), referred the said dispute to the Industrial Tribunal, Punjab for adjudication. The decision of the Tribunal was sought on the following points:

Whether Jhota allowance should be increased? If so, from which date and with what details?

Whether part-time sweepers and sweepresses should be given increase in wages?

Whether part-time sweepresses and sweepers who have joined service after 1st April, 1956, should be given an ad hoc increase of Rs. 3/- per month in wages as granted to other part-time sweepers and sweepresses who were in service on 1st April, 1956? If so, with what details?

4 Whether the following categories of workmen should be provided with free summer and winter uniforms and whether washing allowance should also be given? If so, with what details?

(i) Whole as well as part-time sweepers and sweepresses.

(ii) Sanitary Jamadars.

(iii) Beldars.

(iv) Night-soil Beldars.

Whether sweepers and sweepresses should be given Jharu and Basket allowance? If so, with what details?

Whether Night-soil Beldars'' allowance, the payment of which has been stopped by the management, should be restored? If so, from which date and with what details?

The aforesaid Tribunal gave its award, which was published in the Punjab Government Gazette, dated 13th March, 1970 (copy Annexure ''A'' to the writ petition). The petitioner Municipal Committee has impugned both, the notification, dated 14th October, 1968, of the Punjab State, and the award given by the Tribunal, through the present writ petition, inter-alia, on the grounds-

(a) That the petitioner Municipal Committee does not fall within the ambit and scope of the word ''industry'' as defined in section 2(j) of the Industrial Disputes Act, 1947 (14 of 1947), hereinafter referred to as the Act;

(b) that the order of reference has not been properly authenticated and as such does not constitute a legal and a valid reference in the eye of law;

(c) that the award has been given without notice and without giving hearing to the petitioner; and

(d) that the finding of the learned Tribunal is not based on any evidence.

Respondents 1 and 2 both placed their returns and controverted the allegation that the order of reference or the award suffers from any kind of illegality or lack of jurisdiction. Respondent No. 2, in addition, asserted that as a result of the services of the sweepers the petitioner Municipal Committee earns an yearly revenue of about two to three lakhs of rupees. A preliminary objection was also raised that the petitioner did not raise the question of jurisdiction before the Tribunal and asserted that the same cannot be agitated for the first time before this Court in writ jurisdiction.

Mr. S.K. Sharma, Learned Counsel for the petitioner Municipal Committee, only pressed before me the attack against the award contained in the first ground and specifically stated that he docs not press the other grounds of attack against the said award. So the soundness of his contention that the Municipal Committee does not fall within the ambit and scope of the definition of the word ''industry'' as given in section 2(j) of the Act has only to be considered in this case.

Whether the activity of the petitioner Municipal Committee relating to its scavenging and sanitary functions will bring it within the definition of the word ''industry'' as defined in the Act pointedly came up for consideration before their Lordships of the Supreme Court in two cases: first time in D.N. Banerji Vs. P.R. Mukherjee and Others, and second time in the Corporation of the City of The Corporation of the City of Nagpur Vs. Its Employees, n both the cases, the municipal committee qua its employees, deployed in the sanitation department, was held to answer the definition of the word ''industry'' as given in the Act. So far as the question before this Court is concerned, in my opinion, stands clearly answered by the above-quoted decisions of the Supreme Court, but the Learned Counsel for the petitioner contends that as to whether a particular activity carried on by an employer with the help of the employees engaged in connection therewith can be termed as ''industry'' depends on the construction put on the words ''employers'', ''trade'' ''business'', ''undertaking'', ''manufacture'', and ''calling'' used in section 2(j) of the Act while defining the word ''industry'' The Learned Counsel goes on to assert that since their Lordships of the Supreme Court in their latest decisions especially in the Secretary, Madras Gymkhana Club Employees'' Union Vs. Management of the Gymkhana Club, and in the Management of Sefdarjung Hospital v. Kuldip Singh Sethi (1970) I SCC 735, have given a restricted meaning to the aforesaid words, so earlier decisions in D.N. Banerji and the Corporation, of the City of Nagpur''s cases (Supra) stand overruled by implication and, in any case, contends the Learned Counsel, can no longer be considered to be laying down a good law on the point.

In the Secretary, Madras Gymkhana Club Employees, Union''s case, M. Hidayatullah, C.J., who spoke for the Court after an exhaustive survey of the earlier cases of the Supreme Court on the point, termed the approach of the Court, in dealing with a problem of construing the definition of the word ''industry'', as procrustean and in the letter decision the learned Chief Justice described in the said earlier approach of the Supreme Court as pragmatic and, accordingly, the Supreme Court in the Secretary, Madras Gymkhana Club Employees Union''s case felt the necessity of evolving an exhaustive definition of the word ''industry'' which, in its application, may not be found wanting in covering the variety of activities in which an employer may be engaged with the help of its employees engaged in connection therewith In D.N. Banerji''s case, the particular activity of the municipal committee was held to fall under the head ''undertaking'' as used in the definition of the word ''industry'' in the Act and it was held that though the word ''undertaking'' is wedged in between the two words following and preceding the said words i.e. ''business'' and ''trade'', yet instead of its being restricted in its import by the aforesaid two words, in fact, it gives wider import to the definition, of the word ''industry''. The learned Chief Justice emphasised that in latter decisions of the Supreme Court the word ''undertaking'' was not held to widen import of the definition of the word ''industry,'' but, on the contrary, and was held to be restricted with import from the words ''business'' and ''trade'' and so it was held that only an ''undertaking'' analogous to ''business'' and ''trade'' could be held to answer the definition of the word ''industry''. The learned Chief Justice observed that the extended meaning given to the word ''industry'' by the Court in the Corporation of the City of Nagpur''s case (Supra) was not warranted and it was felt that holding every enterprise that was carried on by a local-body or the Government, which could be undertaken by a private individual or a private firm, to be falling within the definition of the word ''industry, is to over-simplify the problem, because, according to him, even the functions like waging of war could be undertaken and carried on by private companies and corporations, and cited the example of the East India Company which not only undertook to manufacture the weapons of war but, in fact, waged war The learned Chief Justice, finding the definition adopted in a few other decisions of the Supreme Court, such as University of Delhi and Another Vs. Ram Nath, and Harinagar Cane Farm and Others Vs. State of Bihar and Others, to be inadequate, evolved the following test in the Secy., Madras Gymkhana Club Employees'' Union''s case

If the activity can be described as an industry with reference to the occupation of the employers, the ambit of the industry, under the force of the second part, takes in the different kinds of activity of the employees mentioned in the second part. But the second part standing alone cannot define ''industry''..................By the inclusive part of the definition the labour force employed in an industry is made an integral part of the industry for purposes of industrial disputes although industry is ordinarily something which employers create or undertake.

But the learned Chief Justice, while delivering the judgment in the Management of Safdarjung Hospital''s case observed that the definition of the word ''industry'' in the Act need not be dissected, the former part relating to the employer and the liter part relating to the employees, and his Lordship attempted to synthesise the dichotomy, earlier observed in the said definition of the word ''industry'', in the following terms:

It is not necessary to view our definition in two parts. The definition read as a whole denotes a collective enterprise in which employers and employees are associated. It does not exist either by employers alone or by employees alone.........The definition no doubt seeks to define ''industry'' with reference to employer s occupation but includes the employees, for without the two there can be no industry. An industry is only to be found when there are employers and employers, the former relying upon the services of the latter to fullfil their own occupations.

However, the Management of Safdarjung Hospital''s case approved the formulation in the Secretary, Madras Gymkhana Club Employee''s Union''s case regarding the term ''industry'' in these words-

Before the work engaged it can be described as an ''industry'', it must bear the definite character of ''trade'' or ''business'' or ''manufacture'' or ''calling'' or must be capable of being described as an undertaking resulting in material goods or material services.

And after that, their Lordship gave their own formulation in the Management of Safdarjung Hospital''s case which is in the following terms:-

It, therefore, follows that before an industrial dispute can be raised between employers and their employees or between employers and employers or between employees and employees in relation to the employment or non-employment or the terms of employment or with the conditions of labour of any person, there must be first established a relationship of employers and employees associating together, the former following a trade, business, manufacture, undertaking or calling of employers in the production of material goods and material services and the latter following any ca ling, service, employment, handicraft, or industrial occupation or avocation of workmen in aid of the employers, enterprise. It is not necessary that there must be a profit motive but the enterprise must be analogous to trade or business in a commercial sense.

The expression ''material services'' occurring in both the formulations, one adopted in the Secretary, Madras Gymkhana Club Employees ''Union''s case and the other adopted in the Management of Safdarjung Hospital''s case was explained in the latter case in the following words-

What is meant by ''material services'' need some explanation too. Material services are not services which depend wholly or largely upon the contribution of professional knowledge, skill or dexterity for the production of a result. Such services being given individually and by individuals are services no doubt but not material services. Even an establishment where many such operate cannot be said to convert their professional services into material services. Material services involve an activity carried on through co-operation between employers and employees to provide the community with the use of something such as electric power, water, transportation, mail delivery, telephones and the like. In providing these services there may be employment of trained men and even professional men, but the emphasis is not on what these men do but upon the productivity of a service organised as an industry and commercially valuable. Thus the services of professional men involving benefit to individuals according to their needs, such as doctors, teachers, lawyers, solicitors, etc. are easily distinguishable from an activity such as transport service. 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.

Applying the test laid down in the Secretary, Madras Gymkhana Club Employee''s Union''s case and in the Management of Safdarjung Hospital''s case to the facts of the present case, the question that has to be answered is as to whether the sanitation department of the petitioner Municipal Committee, which employs the sweepers and other employees, results in the production of ''material goods'' or ''material services''. Judging the aforesaid activity of the petitioner Municipal Committee in the light of the test laid down by their Lordships of the Supreme Court in the latest decisions noticed above, I am clearly of the opinion that the activity of the petitioner Municipal Committee in its sanitation department does result in rendering ''material services'' to the inhabitants and, accordingly, the said activity of the petitioner Municipal Committee is an ''undertaking'' analogous to the ''business'' and ''trade'' in the commercial sense. The Learned Counsel for the petitioner sought to emphasie the fact that the aforesaid activity of the petitioner Municipal Committee is not an ''undertaking'' in the commercial sense, as no profit motive is involved. In my opinion, the Learned Counsel has not correctly understood the import of the word commercial'' as used by their Lordships of the Supreme Court. The expression ''in the commercial sense'' is used in contradistinction to the words ''charitable, ''voluntary'' or ''pleasure sake''. The scavenging services rendered by the petitioner Municipal Committee are certainly not ''charitable and the inhabitants have to pay for the same in one manner or the other. Hence the said services are ''material'' in the present case, especially when the petitioner Municipal Committee adds to its revenue to the tune of two to three lakhs of rupees annually from such an activity or services.

For the reasons stated above, I hold that the petitioner Municipal Committee is an ''industry'' qua its respondent employees and a dispute between the two does amount 10 an ''industrial dispute'' under the Act and, accordingly, respondent No. 1 was well within its jurisdiction to refer the said dispute to the Industrial Tribunal for its adjudication which, in turn, was well within its jurisdiction to adjudicate upon the same. Hence the order of reference, dated 14th October, 1968 (annexure 2 to the return of the State), as also the award published in the Punjab Government Gazette, dated 13th March, 1970 (copy annexure ''A'' to the Writ petition), is legal and valid in law.

As regards the contention that the Supreme Court decisions in D.N. Banerji and in the Corporation of the City of Nagpur''s cases, in view of the later decision of the Supreme Court in the Secretary, Madras Gymkhana Club Employees'' Unions'' case, cannot be considered as good law, I am of the opinion that there is no merit in this contention Unless those decisions in D.N. Banerji and in the Corporation of the City of Nagpur cases are specifically over-ruled by their Lordships of the Supreme Court or the ratio of those decisions is rendered inapplicable as a result of some amendment in the statute or their Lordships of the Supreme Court themselves take a totally contrary view to the one taken in those cases, it is not open to me to hold that those two earlier decisions of the Supreme Court are not binding on this Court, because, in my opinion, the later decision of the Supreme Court in the Secretary, Madras Gymkhana. Club Employees'' Union''s case cannot be considered to have diluted the binding nature of the ratio of those earlier two decisions. But this fact apart, I have otherwise independently reached the conclusion that the petitioner is an industry, as stated above, by applying the test laid down by the Supreme Court in the Secretary, Madras Gymkhana Club Employees'' Union''s case.

Before parting with the case, however, the preliminary objection raised by the Learned Counsel for respondent No. 2 may be noticed and disposed of. The objection is that the petitioner Municipal Committee did not raise the question of jurisdiction before the Tribunal and hence it is debarred from raising the same for the first time in this Court. The objection to the jurisdiction of the Tribunal for its decision in this case depends on certain facts and to that extent, there is merit in the preliminary objection, because to find out as to whether the tribunal has jurisdiction in the matter or not, the facts will have to be looked into and if a party does not raise the objection before the Tribunal, then the other party is not in a position to bring all the facts on the record to enable the Tribunal to decide the question of jurisdiction, but in the present case the facts necessary for the decision as to whether the Tribunal has jurisdiction in the matter have been stated in the return by respondent No. 2 which are that the respondent employees have been employed, by the petitioner Municipal Committee and that the said Municipal Committee is adding to its revenue to the tune of two to three lakhs of rupees annually as a result of their efforts and activity of scavenging. The Learned Counsel for the petitioner Municipal Committee admitted those facts at the bar and then invited the decision of this Court on the question of jurisdiction. By now it is well settled that where all the facts necessary for deciding a question of law are adduced on the record, then an objection that the question of law was not raised at an earlier stage does not hold good. In view of this, I proceeded to decide the question of jurisdiction in this case.

In the result, this writ petition is dismissed, but in the circumstances of this case, I make no order as to costs.