TMI Blog1963 (4) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... at since his services were no longer required, he would be discharged from his employment on payment of one month's salary in lieu of notice. Asgar Masih made substantially similar allegations. He bad been employed in the first instance, by appellant No. 1 as driver but was then transferred to appellant No. 2 on October 1, 1949. His services were similarly terminated by notice on May 1, 1961 on payment of one month's salary in advance in lieu of notice. It is common ground that appellant No. 1 found that running the buses for the convenience of the girl students attending the college run by appellant No. 2 resulted in loss, and so, it was decided to discontinue that amenity. Inevitably, the services of the two drivers had to be retrenched, and so, there is no dispute that the retrenchment is genuine and there is no element of mala fides or unfair labour practice involved in it. It is also common ground that if the employees are workmen within the meaning of the Act, and the work carried on by the appellants is an industry under s. 2(j), section 25F has not been complied with and retrenchment amount payable under it has not been paid to the respondents. The petitions made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch an activity generally involves the co-operation of the employer- and the employees; and its object is the satisfaction of material human needs. It must be organised or arranged in a manner in which trade or business is generally organised or arranged. It must not be causal nor must it be for oneself, nor for pleasures. The argument is that the concept of 'service' which is expressly included in the definition of 'industry' need not be confined to material service and ought to be held to include even educa- tional or cultural service, and in that sense educational work carried on by the University of Delhi held to be an industry. Having regard to the fact that the word industry' as defined in the Act takes within its sweep any calling or service or employment, it cannot be denied that there is prima facie some force in the argument urged by the respondents, but in testing the validity of this argument, it will immediately become necessary to enquire whether the work carried on by an educational institution can be said to be work carried on by it with the assistance of labour or co- operation of teachers. The main function of educational institutions is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ft, or industrial occupation or avocation 'of workmen. It is un- necessary to comment on this definition, because the precise scope of this definition is the very subject matter of the dispute which we are, considering. 'That takes us to the definition of workman prescribed by s. 2 (s). A workman under the said definition means., inter alia, any person, including an apprentice, employed in any industry to do any skilled or unskilled manual, supervisory,, technical or clerical work for hire or reward. 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 co-operation 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f excluding teachers from s. 2(s) is only this that the remedy available for the betterment of their financial prospects does not fall under the Act. It is well known that Education Departments of the State Governments as well as the Union Government, and the UniversitY Grants Commission carefully consider this problem .and assist the 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 from the sole class of 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. In this connection, it would be material to examine the composition of the University of Delhi. This University has been established and incorporated as a teaching and affiliatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of service which may fall under s . 2(j). It is well known that the University of Delhi and most 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 emphasis the fact that the work undertaken by such educational institutions differs from the normal concept of trade. or business. Indeed, from a rational point of view, it would be regarded as inappropriate to describe education even as a profession. Education in its true aspect is more a mission and a vocation rather than a profession or trade or business, however wide may be the denotation of the two latter words under the Act. That is why we think it would be unreasonable to hold that educational institutions are employers within the meaning of s. 2 (g), or that the work of teaching carried on by them is an industry under s. 2(j), because, essentially, the creation of a well-educated, healthy young generation imbued with a rational progressive outlook on life which is the sole aim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Victoria ((1929) 41 C. L.R. 569.), and since Isaacs J. held that the dispute raised by the teachers in that case amounted to an industrial dispute, it would follow that this Court by implication, has expressed its concurrence with the conclusion of Isaacsj. This argument is not well founded. It is true that in the Hospital Mazdoor Sabha case (E1960J 2 S.C.R. 866, 879.), this Court expressed its general approval with the social philosophy to which Isaacs J. gave expression in his dissenting judgment in dealing with the scope and effect of the definition prescribed by s. 2 (j) in our Act ; but it deliberately took the precaution of making a specific statement that though the general views expressed by Isaacs J. appeared to the Court to be acceptable, the Court should not be understood as having concurred in his final conclusion in, regard to the character of educational activities carried on by educational institutions. The observation made in the judgment leaving open that question was not a casual or an accidental observation ; it was made deliberately to avoid a possible argument in future that the said judgment impliedly accepted the conclusion of Isaacs J. Therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat goes to make the man forms a part of the community industrially organised with a view to the production and distribution of wealth. (p. 592). Isaacs, J., however, struck a strong note of dissent. With the general observations made by Isaacs, J., in regard to the scope of industrial disputes this Court has already expressed its concurrence., but, with respect, it is not easy to accept the theory of the learned judge that education provided by the State in that case constituted in itself an independent industrial operation as a service rendered to the community (p. 588). Similar comment falls to be made in regard to another observation of the learned judge that there is at least as much reason for including the educational establishments in the constitutional power as labour services, as there is to include insurance companies as capital services. The learned Judge thought that in that compound process, two facts emerge with respect to education. One is that industrial education is less and less left to apprenticeship systems and the other is that the efficiency of the worker is generally directly affected by his education. (pp. 588 589). We are inclined to think that the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion's plea that its activities did not constitute an-industry-, but remanded the case to the Industrial Court for determining which of the departments of the Corporation fell within the definition. After remand, the Industrial Court found all the departments of the Corporation to constitute an industry, except five. Against the said award, the Corporation came to this Court by special leave. No appeal was, however, preferred by the employees in respect of the five departments which were excluded from s.2(14) by the award. The appeal preferred by the Corporation failed and this Court added that the finding of the Industrial Court excluding five departments from the definition under s.2(14) need not be examined, since it had not been challenged by the employees. That, in substance, is the decision of this Court. It would be noticed that the main argument which was urged on behalf of the Corporation was that its activities were regal or governmental in Character, and so, it was entirely outside the purview of the Berar Act. This argument was carefully examined. It was conceded that the regal functions described as primary and inalienable functions of the State are outside the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of the institution which was applied to the Corporation is applied to the University of Delhi, the answer would be plainly against the respondents. The predominant activity of the University of Delhi is outside the Act, because teaching and teachers connected with it do not come within its purview, and so, the minor and incidental activity carried on by the subordinate staff which may fall within the purview of the Act cannot alter the predominant character of the institution. It would be recalled that in the case of the Hospital Mazdoor Sabha ([1960] 2 S.C.R. 866, 879.), the question about educational institutions was deliberately and expressly left open, and if the said question was intended to be decided in the case of the Corporation of the City of Nagpur ([1960] 2 S.C. R. 942. ), naturally more specific arguments would have been urged and the problem would have been examined in all its aspects. Incidentally, we may add that the Bench that left the question open in the case of Hospital Mazdoor Sabha (1) was the same Bench which heard the case of the Corporation of the City of Nagpur and the two matters were argued soon after each other, though the judgment in the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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