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TMI Blog1978 (2) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... rother 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 Lord Goddard entirely agreed) observed : "These heroics are out of place" and Lord T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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. 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 clerical work for hire or reward, whether the terms of employment be express or implied,, and for the purposes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legislative body functioning in a static society that its intention was couched in terms of considerable breadth so as to take within its sweep the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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." In that very case this Court also said (at p. 308) : "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 ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 real sweep of the last part. Neither "Noscitur a sociis" rule nor the " ejusdem generis" rule are adequate for such a case. There is wisdom in the suggestion that in view of these difficulties in finding the meaning of the term 'industry', as defined in the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a business or trade, employing a number of persons, in which disputes could arise between employers and their employees, they would not enter the field of industry. The same type of activity may have both industrial and non-industrial aspects or sectors. I would also like to make a few observations about the so called " sovere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber of cases cited before us, including those on what are known as "sovereign" functions. 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 committed in the course of their employment as such." I may also quote another passage from Rajasthan State Electricity Board v. Mohan Lal ([1967] (3) SCR 377 at 385) to show that the State today increasingly undertakes commercial functions and economic activities and services, as part of its duties in a welfare state. The Court said there : "Under the Constitution, the State is it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 repositories. A Gloucester shire farmers would say they were farm buildings and would laugh at their being called 'repositories." in the same spirit, Stamp J. rejected the argument that the carrying on of the business of a crematorium involved the " subjection of goods or materials to any process" within section 271 (1) (c) of the Income Tax Act 1952 as a distortion of the English language...... I protest against subjecting the English language, and more p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rking 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. 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 in separation and aloofness. The penalty is paid both in the wasted effort of production and in the lowered quality of the product. On the one side, the judges, left to fight against anachronism and injustice by the methods of judge-made law, are distracted by the conflicting promptings of justice and logic, of consistency and mercy, and the output of their labors bears the tokens of the strain. On the other side, the legislature, informed only casually and intermittently of the needs and problems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides 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. Therefore, we think it necessary to place this case before the learned Chief Justice for consideration by a larger Bench. If in the meantime the Parliament does not act, this Court may have to illumine the twilight area of law and help the industrial community carry on smoothly So, the long and short of it is, what is an industry? Section 2 (j) defines it : "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:" Let us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse 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. Likewise, an 'industry' cannot exist without co-operative endeavyour between employer and employee. No employer, no industry; no employee, no industry-not as a dogmatic proposition in economics but as an articulate major premise of the definition and the schema of the Act, and as a necessary postulate of industrial disputes and statutory resolution thereof. An industry is not a futility but geared to utilities in which the community has concern. And in this mundane world where law lives, now, economic utilities-material goods and services, not transcendental flights nor intangible achievements-are the functional focus of industry. Therefore, no temporal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 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, according to a sympathetic rule of law, of the conflicts, actual or potential, between managements and workmen. Its goal is amelioration of the conditions of workers, tempered by a practical sense of peaceful co-existence, to the benefit of both-not a neutral position but restraints on laissez faire and concern for the welfare of the weaker lot. Empathy with the statute is necessary to understand not merely its spirit but also its sense. One of the vital concepts on which the whole statute is built, is 'industry' and when we approach the definition in Section 2 (j), we must be informed by these values. This certainly does not mean that we should strain the language of the definition to import into it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 vague and uncertainbut not to contradict it or supplant it altogether." Hotel and Catering Industry Training Board v. Automobile Proprietary Ltd. (1968) 1 W.L.R. 1526 at 1530. A definition is ordinarily the crystallisation of a legal concept promoting precision and rounding off blurred edges but, alas, the definition in S2(j), viewed in retrospect, has achieved the opposite. Even so, we must try to clarify. Sometimes active interrogatories tell better than bland affirmatives and so marginal omissions notwithstanding, we will string the points together in a few questions on which we have been addressed. A cynical jurist surveying the forensic scene may make unhappy comments. Counsel for the respondent Unions sounded that note. A pluralist society with a capitalist backbone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 output of the undertaking ? (b) Could a lawyer's chambers or chartered accountant's office, a doctor's clinic or other liberal profession's occupation or calling be designated an industry ? (c) Would a University or college or school or research institute be called an industry ? 3. (a)Is the inclusive part of the definition in Sec. 2(j) relevant to the determination of an industry ? If so, what impact does it make on the categories ? (b) Do domestic service drudges who slave without respite-become 'industries' by this extended sense ? 4. Are governmental functions, stricto sensu, industrial and if not, what is the extent of the immunity of instrumentalities of government ? 5. What rational criterion exists for a cut-back on the dynamic potential and semantic sweep of the definition, implicit in the industrial law of a progressive society geared to greater industrialisation and consequent concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 their glosses, not overruled it and the fertile source of conflict has been the bashyams rather than the basic decision. Therefore, our task is not to supplant the ratio of Banerji but to straighten and strengthen it in its application, away from different deviations and aberrations. Banerji. The Budge Budge Municipality dismissed two employees whose dispute was sponsored by the Union. The award of the Industrial Tribunal directed reinstatement but the Municipality challenged the award before the High Court and this Court on the fundamental ground that a municipality in discharging its normal duties connected with local selfgovernment is not engaged in any industry as defined in the Act. A panoramic view of the statute and its jurisprudential bearings has been projected there and the essentials of an industry decocted. The definitions of employer (Sec. 2(g), industry [See. 2(j), industrial dispute [Sec. 2(k)] workman [Sec. 2(a)], are a statutory dictionary, not popular parlance. It is plain that mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 arise for solution in the shape of industrial disputes cannot be tackled satisfactorily and this is why every civilised government has thought of the machinery of conciliation officers, Boards and Tribunals for the effective settlement of dispute." (emphasis added) The dynamics of industrial law, even if incongruous with popular understanding, is this first proposition we derive from Banerji : "Legislation had to keep pace with the march of times and to provide for new situations. Social evolution is a process of constant growth, and the State cannot afford to standstill without taking adequate measure by means of legislation to solve large and momentous problems that arise in the industrial field from day to day almost." The second,, though trite, guidance that we get is that we should not be beguiled by similar words in dissimilar statutes, contexts, subject-matters or socioeconomic situations. The same words may mean one thing in one context and another in a different context. This is the reason why decisions on the meaning of par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial dispute, and the proviso to section 10 lays down that where such a dispute arises and a notice under section 22 has been given, the appropriate Government shall make a reference under the sub-section. If the public utility service is carried on by a corporation like a Municipality which is the creature of a state, and which functions under the limitations imposed by the statute, does it cease to be an industry for this reason ? The only ground on which one could say that what would amount to the carrying on of an industry if it is done by a private person ceases to be so if the same work, is carried on by a local body like a Municipality is that in the letter there is nothing like the investment of any capital or the existence of a profit earning motive as there generally is in a business. But neither the one nor the other seems a sine qua non or necessary element In the modern conception of industry? ,(emphasis added) Absence of capital does not negative 'industry. Nay, even charitable services do not necessarily cease to be 'industries definitionally although popularly charity is not industry. Interestingly, the Learned Judge dealt with the point. After enumerating typical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'trade or performance of, its functions by a It is true that these words are used in Part III, which deals with 'recognized terms and conditions of employment, and in Part TV, which deals with 'departures from trade. practices' in 'any industry or undertaking' and not in Part 1, which deals with 'national arbitration' and is the part material in this case, but I take them as illustrating what modern conditions involve-the idea that the functions of local authorities may come under the expression 'trade or industry'. I think the same may be said of the Industrial Courts Act and of Reg. 58-AA, in both of which the word 'trade' is used in the very wide connotation which it bears in the modern legislation dealing with conditions of employment, particularly in relation to matters of collective bargaining and the like". (emphasis added) In short, trade' embraces functions of local authorities, even professions, thus departing from popular notions. Another facet of the controversy is next touched upon-i.e. profit-making motive is not a sine quo non of 'industry' functionally or definitionally. For this, Powers J, in Federated Municipal and Shire Employees' Union of Australia v. Melbourne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustries. Undertakings, sans profit motive, may well be industries. Professions and not ipso facto out of the pale of industries. Any operation carried on in a manner analogous to trade or business may legitimately be statutory 'industry. The popular limitations on the concept of industry do not amputate the ambit of legislative generosity in Sec.2(j). Industrial peace and the smooth supply to the community are among the aims and objects the Legislature had in view, as also the nature, variety range and areas of disputes between employers and employees. These factors must inform the construction of the provision. The limiting role of Banerji must also be noticed so that a total view is gained. For instance, 'analogous to trade or business' cuts ,down 'undertaking, a word of fantastic sweep. Spiritual undertakings, casual undertakings, domestic undertakings, war waging, policing, justicing, legislating, tax collecting and the like are, prima facie, pushed out. Wars are not merchantable, nor justice, saleable, nor divine grace marketable. So, the problem shifts to what Is 'analogous to trade or business'. As we proceed to the next set of cases. we come upon the annotation of other e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Duke of Portland's whim, or the labourers who build (for pay) a tower of Babel or a pyramind, could not beparties to an 'industrial dispute'. The worker-oriented perspective is underscored by Isaacs and Rich JJ. It is at the same time as is perceived, contended on the part of labour, that matters even indirectly prejudicially affecting the ,Workers are, within the sphere of dispute. For, instance, at P. 70 (par. 175(4) (a), one of the competing contentions is thus stated, : "Long, hours proceed from the competition of employer with employer in the same trade Employers ought to be prevented from competing in this way at the expense. of. their workmen." (emphasis added) As a fact, in a later year, Lord lamps of Hereford, in an award, held that one employer in a certain trade must confirm to the the practice, of others. What must be borne,, steadily in mind, as evidenced by the nature of the claims made, is that the about of obtaining a large share of the product of the industry and, of exercising, a voice as to the, general conditions under which it shall be carried on (par. 100) covers all means direct and incidental without which the main object cannot be fully or effectively a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sitous functions. Isaacs and Rich JJ. dwell on this topic and after quoting Lord Watson's test of inalienable functions of a Constitutional government state: "Here we have the discrimen of Crown exemption. If a municipality either [(1997) 1 Q,B. at pp. 70-71] is, legally empowered to perform and does perform any function whatever the Crown, or (1997) 1 Q.B., at p. 71 is lawfully empowered to perform and does perform any function which constitutionally is inalienably a Crown function as, for instance the administration of justice the municipality is in law, presumed to represent the Crown and the exemption applies, Otherwise, it is outside that exemption, and if impliedly exempted at all, some other principle must be resorted to. The making and maintenance of streets in the municipality is not within either proposition". (Italics supplied). Now, the cornerstone of industrial law is well laid by Bannerji, supported by Lord Mayor of the, City of Melbourne, A chronological survey of post-Banerji. decisions of this Court, with, accent on the juristic contributions registered by them, may be methodical Thereafter, cases in alien jurisdictions and derivation of guidelines may be attempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssure on our judgment. And, in this latter process, next to Banerji comes Corporation of Nagpur which spreads the canvas wide and illumines the expression 'analogous to trade or business', although it comes a few days after Hospital Mazdoor Sabha decided by the same Bench. To be sure of our approach on a wider basis let us cast a glance at internationally recognised concepts vis-a-vis industry. The International Labour Organisation has had occasion to consider, freedom of association for labour as a primary right and collective bargaining followed by strikes, if necessary, as a derivative right. The question has arisen as to whether public servants employed in the crucial functions of the government fall outside the orbit of industrial conflict. Convention No. 98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, in Article 6 states "This Convention does not deal with the position of Public servants engaged in the administration of the State, nor shall it be construed as prejudicing their' rights or status in any way." Thus, it is well-recognised that public servants in the key sectors of Administration stand out of the industrial s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llective bargaining, according to national conditions, with a view to the regulation of terms and conditions of employment. 118th Report, Case No. 573, para. 194. 255. The Committee has pointed out that Convention No. 98, dealing with the promotion of collective bargaining, covers all public servants who do not act as agents of the public authority and consequently among these, employers of the, postal and telecommunications services. 139th Report, Case No. 725, para. 278. 256. Civil aviation technicians working under the jurisdictionof the armed forces cannot be considered, in view of the nature of their activities, as belonging to the armed forces and as such liable to be excluded from the guarantees laid. down,, in Convention No. 9 8; the rule contained in Article 4 of the convention concerning collective bargainings should be applied. to them. 116th Report, Case No. 598, paras. 375-.378. This divagation was calculated only to emphasise certain fundamentals in international industrial thinking which accord with a wider conceptual acceptation for 'industry'. The wings of the 'industry' have been spread wide in section 2(j) and brought out in the decision in Corporation case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot depend upon the employment of a labour force. Whether the exclusion of personal services is warranted may be examined a little later. The, Court proceeded to carve out the negative factor& which, notwithstanding the literal width of the language of the definition, must, for other competing reasons, be kept out of the scope of industry For instance, sovereign functions of the State cannot be included although what such functions are has been aptly termed 'the primary and inalienable functions of a constitutional government'. Even here we may point out the inaptitude of, relying on the doctrine of regal powers, That has reference in this context to, the Crown's liability in tort and has nothing to do with Industrial Law, In any case it is open to Parliament to make law which governs the State's relations with its employees. Articles 309 to, 311 of the Constitution of India, the enactments dealing with the defence Forces and other legislation dealing with employment under statutory bodies may, expressly or by necessary implication, exclude the operation of the Industrial. Disputes Act, 1947. That is a question of interpretation and statutory exclusion; but, in the absence of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt to this aspect a little later. It is useful to remember that the Court rejected the test attempted by counsel in the case : "It is said that unless there is a quid pro quo for the service it cannot be an industry. This is the same argument, namely, that the service must be in the nature of trade in a different garb" We agree with this observation and with the further observation that there is no merit in the plea that unless the public who are benefited by the services pay in cash, the services so rendered cannot be industry. Indeed, the signal service rendered by the Corporation of Nagpur is to dispel the idea of profit-making. Relying on Australian cases which held that profit-making may be important from the income tax point of view but irrelevant from an industrial dispute point of view, the Court approved of a critical passage in the dissenting judgment of Isaacs J., in the School Teachers' Association case (supra) : "The contention sounds like an echo from the dark ages, of industry and political I economy.......... Such disputes are not simply a claim to share the material wealth......... 'Monetary considerations for service is, therefore,. not essential Characteris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but it also forgets the memorable industrial organization of the nations, not for the production or distribution, of material wealth, but for services, national service as the service of organized industry must always be. Examination of this contention will not only completely dissipate it, but will also serve to, throw material light on the question in hand generally the contention is radically unsound for two great reasons. It erroneously thereby unduly limits the meaning of the terms "production" conceives the object of national industrial organization and "wealth when used in that connection. But it further neglects the fundamental character of "industrial disputes" as a distinct and insistent phenomenon of modern society. Such disputes are not simply a claim to share the material wealth jointly produced and-capable of registration in statistics. At heart they are a struggle, constantly becoming more intense on the part of the employed group engaged in cooperation with the employing group in rendering services to the community essential for a higher general human welfare, to share in that welfare in a greater degree................ That contention, if acceded to, would be revol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fees for the higher subjects, providing the same curriculum and so on, by means of employed teachers, would such dispute as we have here be an industrial dispute ?.................. I have already indicated my view", says Isaacs J. "that education so provided constitutes in itself an independent industrial operation as a service rendered to the community. Charles Dickens evidently thought so When ninety years ago Squeers called his school "the shop" and prided himself on Nickleby's being "cheap" at pound 5 a year and commensurate living conditions. The world has not turned back since then. In 1926 the Committee on Industry and Trade in their report to the British Prime Minister, included among "Trade Unions" those called "teaching." It there appears that in 1897 there were six unions with a total membership of 45,319 and in 1924 there were seventeen unions with a membership of 1,94,946. The true position of education in relation to the actively operative trades is not really doubtful. Education, cultural and vocational, is now and is daily becoming as much the artisan's capital and tool, and to a great extent his safeguard against unemployment, as the employers' banking credit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. The 'analogous' species of quasitrade qualify for becoming 'industry' if the nature of the organized activity implicit in a trade or business is shared by them. (See p. 960. the entire organisational activity). It is not necessary to 'equate the other activities with trade or business'. The pith and substance of the matter is that the structural, organisational engineering aspect, the crucial industrial relations like wages, leave and other service conditions as well as characteristic business methods (not motives) in running the enterprise, govern the conclusion. Presence of profit motive is expressly negated as a criterion. Even the quid pro quo theory which is the same monetary object in a milder version-has been dismissed. The subtle distinction, drawn in lovely lines and pressed with emphatic effect by Sri Tarkunde, between gain and profit, between no profit noloss basis having different results in the private and public sectors, is fascinating but, in the rough and tumble, and sound and fury of industrial life, such nuances break down and nice refinements defeat. For the same reason, we are disinclined to chase the differential ambits of the first and the second parts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich find assent from us, the tax department of the local body is 'industry'. The reason is this. "The scheme of the Corporation Act is that taxes and fees are collected in order to enable the municipality to discharge its statutory functions. If the functions so discharged are wholly or predominantly covered by definition of "industry", it would be illogical to exclude the tax department from the definition. While in the case of private individuals or firms services are paid in cash or otherwise, in the case of public institutions, as the services are rendered to the public, the taxes collected from them constitute a fund for performing those services. As most of the services rendered by the municipality come under the definition of "industry", we, ,should hold that the employees of the tax department are also entitled to the benefits under the Act. The health department of the municipality too is held in that case to be 'industrya fact which is pertinent when we deal later with hospitals, dispensaries and health centres. "This department looks after scavenging, sanitation, control of epidemics, control of food adulteration and running of public dispensaries. Private institution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions prescribed by law in this regard. The services of this department are therefore analogous to those of a private individual with the difference that one has the statutory sanction behind it and the other is governed by terms of contracts." Be it noted that even co-operatives are covered by the learned Judge although we may deal with that matter a little later. The same Bench decided both Corporation of Nagpur and Hospital Mazdoor Sabha. This latter case may be briefly considered now. It repels the profit motive and quid pro quo theory as having any hearing on the question. The wider import of Sec. 2(j) is accepted but it eXpelS essential 'sovereign activities from its' scope. It is necessary to note that the hospital concerned in that case was run by Government for medical relief to the people. Nay more. It had a substantial educational and training role. "This group serves as a clinical training group for students of the Grant Medical College which is a Government Medical College run and managed by the appellant for imparting medical sciences leading to the Degree of Bachelor of Medicine and Bachelor of Surgery of the Bombay University as well as various Post-Gradu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of provisions regarding public utility service also : "if the object and scope of the statute are considered there would be no difficulty in holding that the relevant words of wide import have been deliberately used by the Legislature in defining "industry" in Sec. 2(j). The object of the Act was to make provision for the investigation and settlement of industrial disputes, and the extent and scope of its provisions would be realised if we bear in mind the definition of "industrial dispute" given by Sec. 2(k), of " wages" by Sec. 2(rr), "workman" by S. 2(s), and of "employer" by s. 2(g). Besides, the definition of a public utility service prescribed by S. 2(m) is very significant. One has merely to glance at the six categories of public utility service mentioned by s. 2(m) to realise that the rule of construction on which the appellant relies is inapplicable in interpreting the definition prescribed by s. 2(j) " (p. 875) The positive delineation of 'industry' is set in these terms activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material service to the community at large or a part of such community with the help ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and should be reasonably implied in interpreting the wide words used in s. 2(j); and that no doubt is a somewhat difficult problem to decide."(p.876) What is a 'fair and just manner' ? It must be founded on grounds Justifiable by principle derived from the statute if it is not to be sublimation of subjective phobia, rationalization of interests or judicialisation of nonjuristic negatives. And this bunch, in our respectful view, has been proved true not by positive pronouncement in the case but by two points suggested but left open. One relates to education and the other to professions. We will deal with them in due course. Liberal Professions When the delimiting line is drawn to whittle down a wide definition, a principled working test, not a projected wishful thought, should be sought. This conflict surfaced in the Solicitor's case (1962 Supp. (3) S.C.R. 157). Before us too, a focal point of contest was as to whether the liberalprofessions are, ipso facto, excluded from "Industry'. Two grounds were given by Gajendragadkar, J. for over-ruling Sri A. S. R. Chari's submissions. The doctrine of direct co-operation and the features of liberal professions were given as good reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing between capital and labour in enterprises where capital and labour combine to produce commodities or to render service. This essential basis would be absent in the case of liberal professions. A person following a liberal profession does not carry on his profession of his employees and the principal, if not the sole, capital which he brings into his profession is his special or peculiar intellectual and educational equipment. That is why on broad and general considerations which cannot be ignored, a liberal profession like that of an attorney" must, we think, be deemed to be outside the definition of 'industry" under section 2(j)". pp. 167-168 Let us examine these two tests. In the sophisticated, subtle, complex, assembly-line operations of modern enterprises, the test of 'direct' and 'indirect', 'essential' and 'inessential', will snap easily. In an American automobile manufactory, everything from shipping iron ore into and shipping care out of the vast complex takes place with myriad major and minor jobs. A million administrative, 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of direct or effective contribution in partnership, they flatly contradicted each other. The reasoning on this part of the case which has been articulated in the Gymkhana Club Employees Union (supra) appeals to us. There is no need for insistence upon the, principle of partnership, the doctrine of direct nexus or the contribution of values by employees. Every employee in a professional office, ,be he a paralegal assistant or full-fledged professional employee or, down the ladder, a mere sweeper or janitor, every-one makes for the success of the office, even the mali who collects flowers and places a beautiful bunch in. a vase on the table spreading fragrance and pleasantness around. The failure of anyone can mar even the success of everyone else. Efficient collectivity is the essence of professional success. We reject the plea that a member of a learned or liberal profession, for that sole reason, can self-exclude himself from operation of the Act. The professional 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... class of the nineteenth century was to form. We have seen that they were united by the bond of classical education; that their broad and ill-defined functions covered much that later would crystallise out into now, specialised, occupations; that each, ultimately, derived much of its standing with the established order in the State.... (1966, p. 23)" In the United States, professional associations are guilds in modern dress. ,Modern professional associations are organizational counterparts of the guilds, They are occupational self-interest organisations. In as much as the professions still perform custom work and exercise a monopoly of training and skill, the guild analogy is plausible. However, aspects of economic history lead to a different conclusion. There has been a shift of emphasis on the part of professionals from control over the quality of the product or service, to control of price." Indeed, 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. The observer, in a leading article 'WIGS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nals to regard themselves as workers in their own sphere or employers or suppliers of specialised service to society. Even justicing is service and, but for the exclusion from industry on the score of sovereign functions, might qualify for being regarded as 'industry'. The plea of 'profession' is irrelevant for the industrial law except as expression of an anathema. No legal principle supports it. Speaking generally, the editors of the book Professions for the People earlier mentioned state : "Jethro K. Lisberman (1970, p. 3) warns : "Professionals are dividing the world into spheres, of influence and erecting large signs saying "experts at work here, do not proceed further." He shows that via such mechanisms as licensing, self-regulation, and political pressure the profession are augmenting the erosion 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." All this adds up to the decanonisation of the noble professions. Assuming that a professional in our egalitarian ethos is like any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essionalism easily melts in the hands of modern social scientists who have (as Watergate has shown in America and has India had its counterpart?) debunked and stripped the professional emperor naked. 'Altruism' has been exposed, cash has overcome craft nexus and if professionalism is a mundane ideology, then "profession" and "professional" are sociological contributions to the pile. Anyway, inthe sophisticated organization of expert services, all occupations have central skills, an occupational code of ethics, a group culture, some occupational-authority, and some permission to monopoly practice from the community. This incisive approach makes it difficult to 'caste-ify' or 'class-ify' the 'liberal professions as part and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or even quasi-industry is one of a plurality of workmen, not an isolated or single little assistant or attendant. The latter category is more or less like personal avocation for livelihood taking some paid or part-time from another. The whole purpose of the Industrial Disputes Act is to focus on resolution of industrial disputes and regulation of industrial relations and not to meddle with every little carpenter in a village or blacksmith in a town who sits with his son or assistant to work for the customers who trek in. The ordinary spectacle of a cobbler and his assistant or a cycle repairer with a helper, we come across in the payments of cities and towns, repels the idea 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. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeded on that assumption viz. that teachers are not workmen, which we will adopt to test the validity of the argument.') The reasoning of the Court is best expressed in the words of. Gajendragadkar, J. : "It is common ground that teachers employed by educational institutions, whether the said institutions are imparting primary, secondary, collegiate or postgraduate education, are not workmen under s. 2(s), and so, it follows that the whole body of employees with whose cooperation the work of imparting education is carried on by educational institutions do not fall within the purview of s. 2(s) and any disputes between them and the institutions 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teachers by requiring the payment to them of proper scales of pay and by insisting on the fixation of other reasonable terms and conditions of service in regard to teachers engaged in primary and secondary education and collegiate education which fall under their respective jurisdictions. The position nevertheless is clear that any problems connected with teachers and their salaries are outside the purview of the Act, and since the teachers form the sole class employees with whose co-operation education is imparted by educational institutions, their exclusion from the purview of the Act necessarily corroborates the conclusion that education itself is not without its scope." Another reason has also been adduced to reinforce this conclusion : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff being only a minor category of insignificant numbers, the institution must be excluded, going by the predominant character test. It is one thing to say that an institution is not an industry. It is altogether ,another thinking to say that a large number of its employees are not workmen' and cannot therefore, avail of the benefits of the. Act so the institution ceases to be an industry. The test is not the predominant number of employees entitled to enjoy the benefits of the Act. The true test is the predominant nature 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. 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 transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission and vocation, rather than a profession or trade or business. The most that one can say is that this is an assertion which does not prove itself. Indeed, all life is a mission and a man without a mission is spiritually stillborn. The high mission of life is the manifestation of the divinity already in man. To christen education as a mission, even if true, is not to negate its being an industry. We have to look at educational activity from the angle of the Act, and so viewed the ingredients of education are fulfilled. Education is, therefore, an industry and nothing can stand in the way of that conclusion. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he establishment is oriented on a humane mission fulfilled by man who work, not because they are paid wages, but because they share the passion for the cause and derive job satisfaction from their contribution. The first two are industries, the third not. What is the test of identity whereby these institutions with eleemosynary inspiration fall or do not fall under the definition of industry ? 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. It is common, ground that the first category of charities is disqualified for exemption. If a business is run for production and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or him charity must begin at home. From these strands of thought flows the conclusion that the 'second group may legitimately and legally be described as industry. The fallacy in the contrary contention lies in shifting the focus from the worker and the industrial activity to the disposal of the end product. This law has nothing to do with that. The income-tax may have, social opinion may have. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ationship such as is found in trade or business between the head who employs and the others who emotively flock to render service. In one sense, there are no employers and employees but crusaders all. In another sense, there is no wage basis for the employment but voluntary participation in the production, inspired 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eatures. It is laudable and situations dedicated to amelioration of conditions of animals deserve encouragement from the State and affluent philanthropists. But these considerations have no bearing on the crucial factors which invoke the application of the definition in the Act as already set out elaborately 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 dair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he C.S.I.R. and the Central Plantation Crops Research Institute are not industries. The basic decision which has gone against the Ahmedabad Textile case is the Safdarjung case. 'We may briefly examine the rival view-points, although in substance we have already stated the correct 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 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 hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch conformation and 'industry' cannot functionally and defunctionally exceed this object. The question is whether in a club situation-or of a co-operative or even a monastery situation, for that matter a dispute potential of the nature suggested exists. 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 associationswhen 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 materialthe appliances and auxiliaries and the cooks, waiters, bell boys, pickers bar maids or other servants making available enjoyable eats, pleasures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a poor, populous, culturally hungry country with democratic urges and youthful vigour is this species. Lest there should be a rush by the clubs we have considered and dismissed to get into this proletarian brood if we may so describe them to identify, not at all to be pejorative,-we must elucidate. 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 lowincome, 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. Even these people's organs cannot be non-industries unless one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal with them before we conclude on this topic. The Madras Gymkhana Club, a blue-blooded, members' club has the socialite cream of the city on its rolls. It offers choice facilities for golf, tennis and billiards, arranges dances, dinners and refreshments, entertains and accommodates guests and conducts tournaments for members and nonmembers. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niment of dinners, dance, games and thrills. The 'reason' one 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'. 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-oppration 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 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., went a step further to hold that even if such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is not an industry as laid down in the Act." 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 institution out of the scope of industry. Although the facts of the three appeals considered in Safdarjung related only to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the production of this something which is described as the production of material services.' 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. 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 the institutions. Equally puzzling is the reference to "commercial sense" what precisely doer, this expression mean It is interesting to note that the word "commercial" has mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvations 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 mould which would not permit of expansion as and when necessity arises. Only some working principles may be evolved which would furnish guidance in determining what are the attribute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itutes,. 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. 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 understanding and trust based on a dynamic rule of law which speaks clearly, firmly and humanely. If the salt of law lose its savour of progressive certainty wherewith shall it be salted ? So we proceed to formulate the principles, deducib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions. 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 in minimal matters, marginal employees are hired without destroying the nonemployee character of the unit. (c) If in a pious or altruistic mission many employ themselves, free or for small honoraria, or likely return mainly by sharing in the purpose or cause, such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, 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 with the principles of Law herein laid down. ORDER We are in respectful agreement with the view expressed by Krishna Iyer, J. in his critical judgment that the Bangalore Water Supply and Sewerage Board appeal should be dismissed. We will give our reasons later indicating the area of concurrence and divergence, if any, on the various points in controversy on which our learned Brother has dwelt. CHANDRACHUD, C. J.-By a short order dated February 21, 1978, which I pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jendragadkar, 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. 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 the legislature in defining 'industry' in section 2 (j) of the Act. The object of the Act, the Court said, was to make, provision for the investigation and settlement of industrial disputes, and the extent and scope of its provisions would be realised if one were to bear in mind the definition of 'industrial dispute' given by s. 2(k), of 'wages' by s. 2(rr), 'workman' by s. 2(s), and of 'employer by s. 2(g). The Court also thought that in deciding whether the State was running an industry, the definition of 'public utility service' prescribed by section 2(n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 working principle, 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 within the meaning; of section 2(j);that such an, activity generally involves the co-operation of the employer and the employees; that the activity must not be casual nor must it be for oneself nor for pleasure, but it must be organised or arranged in a armor in which trade or business is generally organised; and thus,the manner in which an activity is organised or arranged and the, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 in fulfilment of the State's constitutional obligations or in discharge of its constitutional functions; In fact, to concedethe benefit of an exception to the State's activities which are in the nature of sovereign functions is really to have regard not so much to the nature of the activity as to the consideration who engages in that activity; for, sovereign functions can only be discharged by the State and not by a private person. If the State's inalienable functions are excepted from the sweep of the definition contained in section 2(j), one shall have unwittingly rejected the fundamental test that it is the nature of the activity which ought to determine whether the activity is an industry. Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 nature of the activity. It is never true to say that the nature of an activity 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 argument that he who does charity is not doing trade or business misses the point because the true test is whether the activity, considered objectively, is organised or arranged in a manner in which trade or business is normally organised or arranged. If so, the activity would be an industry no matter whether the employer is actuated by charitable motives in undertaking it. The jural foundation of any attempt to except charitable enterprises from the sco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition 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 employee is the proximate cause of the ultimate product and bears direct nexus with it is a test which 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 end product which is a creation of his personal professional skill as that, without their active assistance and cooperation it will be impossible for him to function effectively. The unhappily 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 bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 terms in which the definition is couched and applying the doctrine of noscitur a sociis (which, as pointed out by this Court in State of Bombay & Ors. v. The Hospital Mazdoor Sabha & Ors.( [1960] 2 S.C.R. 866) means that, when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the, more general is restricted to a sense analogous to a less general. Expressed differentlY, it means that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it, we are of the view that despite the width of the definition it could not be the intention of the Legislature that categories 2 and 3 of the charities alluded to by our le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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