TMI Blog1960 (1) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... ade Unions Act XIV of 1926 and two of its members Mrs. Vatsala Narayan and Mrs. Ruth Isaac (hereinafter called respondents I to 3). Respondents IQ and 3 were employed as Ward servants in the J. J. group of Hospitals. The superintendent of this said group of Hospitals informed the said respondents by notices issued respectively against them that their services would be terminated with effect from the dates mentioned in the said notices and in accordance with the said notices their services were in fact terminated; subsequently in their place two State servants who were discharged from the Civil Supplies Department were appointed. The writ petition filed by the respondents alleged that the retrenchment of respondents 2 and 3 was void as it did not comply with the mandatory provisions of ss. 25F and 25H of the Industrial Disputes Act, 1947 (14 of 1947) (hereinafter called the Act) and it claimed a writ of mandamus directing the appellant to reinstate them in their posts. This petition was resisted by the appellant on several grounds. It was urged that the orders terminating the services of respondents 2 and 3 were not void and so the respondents' claim for a writ was unjustifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in holding that the contravention of the material provisions of s. 25F of the Act rendered the impugned orders invalid; and do the relevant provisions of the Act apply to the group of Hospitals run by the appellant; are they an industry within the meaning of the Act? Before dealing with these points it would be relevant to state the material facts in regard to the group of Hospitals themselves which are not in dispute. This group consists of five Hospitals. It appears that in 1835 Sir Robert Grant, the then Governor of Bombay, desired to start an institution for the purposes of imparting medical education in the Presidency of Bombay. His proposal in that behalf was sanctioned by the Board of Directors of the East India Company and funds amounting to ₹ 44,000 were collected for the purpose and an equal amount was contributed by the Directors to defray the cost of construction of the College building. 'In 1843 the foundation of the Medical College building was laid and the same was completed in 1845. About that time an idea of building a hospital for the sick people of all classes and castes was mooted and Sir Jamsetjee Jeejibboy offered donation and some contribution wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid at the time of retrenchment compensation which shall be equivalent to fifteen days' average pay for every completed year of service or any part thereof in excess of six months. Clauses (a) and (c) of the said section prescribe similar conditions but we are not concerned with them. On a plain reading of s. 25F (b) it is clear that the requirement prescribed by it is a condition precedent for the retrenchment of the workman. The section provides that no workman shall be retrenched until the condition in question has been satisfied. It is difficult to accede to the argument that where the section imposes in mandatory terms a condition precedent, non-compliance with the said condition would not render the impugned retrenchment invalid. The argument which appealed to Tendolkar, J., however, was that the consequence of non-compliance with the requirement of s. 25F (b) was not to render the impugned retrenchment invalid, because be thought that by s. 251 a specific provision has been made for the recovery of the amount prescribed by s. 25F (b). Section 251 provides for the recovery of monies due from employers under Ch. V, and according to Tendolkor J. this provision covers the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccupation, vocation, business or trade ; so is the word service very wide in its import. Prima facie, if the definition has deliberately used words of such wide import, it would be necessary to read those words in their wide denotation; and so read, Hospitals cannot be excluded from the definition. It is, however, contended that, in construing the definition, we must adopt the rule of construction noscuntur a sociis. This rule, according to Maxwell, 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 is it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. The same rule is thus interpreted in Words and Phrases (Vol. XIV, P. 207): Associated words take their meaning from one another under the doctrine of noscuntur a sociis, the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maxim Ejusdem Generis. In fact the latter I maxim is only an illustration or specific application of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction on which the appellant relies is inapplicable in interpreting the definition prescribed by s. 2(j). There is another point which cannot be ignored. Section 2(j) does not define industry in the usual manner by prescribing what it means: the first clause of the definition gives the statutory meaning of industry and the second clause deliberately refers to several other items of industry and brings them in the definition in an inclusive way. It is obvious that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sense. (Vide: Stroud's Judicial Dictionary , Vol. 2, p. 1415). Where we are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider denotation. Besides, it would be relevant to point out that too much reliance cannot be placed on what are described as the essential attributes or features of trade or business as conventionally understood. The conventional meaning attributed to the words trade and business has lost some of it validity for the purpose of industrial adjudication. Industrial adjudication has necessarily to be aware of the curre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling under s. 2(j). There are two serious difficulties in accepting such a suggestion, and indeed the appellant concedes the presence of these two difficulties. It is not disputed that under s. 2(j) an activity can and must be regarded as an industry even though in carrying it out profit motive may be absent. It is also common ground that the absence of investment of any capital would not make a material difference to the applicability of s. 2(j). Thus, two of the important attributes conventionally associated with trade or business are not necessarily predicated in interpreting s. 2(j). What then can be said to be the attributes or features which should be common between trade and business on the one hand and an undertaking and other items mentioned in s. 2(j) on the other ? It would be possible to exclude some activities from s. 2(j) without any difficulty. Negatively stated the activities of the Government which can be properly described as regal or sovereign activities are outsidly the scope of s. 2(j). These are functions which a constitutional Government can and must undertake for governance and which no private citizen can undertake. This position is not in dispute. An a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. We have already stated that the presence of profit motive is not essential for bringing an undertaking within s. 2 (j). If that be so, if a private citizen runs a hospital without charging any fees from the patients treated in it would nevertheless be an undertaking under s. 2(j). Thus the character of the activity involved in running a hospital brings the institution of the hospital within s. 2(j). Does it make any difference that the hospital is run by the Government in the interpretation of the word undertaking in s. 2(j) ? In our opinion, the answer to this question must be in the negative. It is the character of the activity which decides the question as to whether the activity in question attracts the provision of s. 2(j); who conducts the activity and whether it is conducted for profit or not do not make a material difference. We have yet to decide which are the attributes the presence of which makes in activity an under taking within s. 2(j), on the ground that it is analogous to trade or business. It is difficult to state these possible, attributes definitely or exhaustively; as a working principle it may be stated that an activity systematically or habitually unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries which may be declared as public utility service under s. 2(n)(vi), three entries have been added by Act 36 of 1956. They are Defence Establishment, services in hospitals and dispensaries, and Fire, Brigade service. In other words, by the addition of these three entries the Leo- islature has clearly indicated its intention that service in hospitals and dispensaries can be declared to be a public utility service under s. 2(n)(vi); and there is no doubt that unless the service in hospitals falls under s. 2(j) and is treated as an industry it cannot be declared to be a public utility service. It is true that this particular entry had not been included in the First Schedule at the time when the present reference wag made, but its subsequent inclusion can be reasonably taken as evidence of legislative intention, and, if on a construction of s. 2(j) we have independently reached the conclusion that service in hospitals is service or the conduct of hospitals is an undertaking, we may reasonably seek to derive corroboration to our conclusion by this subsequent legislative enactment,. After the addition of the relevant entry in the First Schedule it would not be open to anybody to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the modern conception of industry . It is because of this positive decision that the appellant has fairly conceded in the course of the argument before us that the absence of the profit motive or of investment of capital would not make a material difference in determinig the character of an activity this court has also examined the other relevant factors pertaining to the construction of the word industry and industry dispute and has declared its decision thus; Having regard to the definitions found In our Act the aim or objective that the Legislature had in view and the nature, variety and range of disputes that occur between employers and employees, were forced to the conclusion that the definitions in our Act include also disputes that right arise between municipalities and their employees in branches of work that can be said to be analogy to the carrying out of a trade or business . In the present appeal we have to decide the question as to ,hat attributes or features can be said to make an activity in question analogous to trade or business. Incidentally we may add that quite apart from the relevant considerations which we have already discussed it would be difficult t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute an industry with the meaning of s. 4 of the Commonwealth Conciliation and Arbitration Act, 1904-1928 ; that the occupation of teachers so employed was riot an industrial occupation; and that the dispute which existed between the State and the teachers employed by them was therefore, not an industrial dispute within s. 51 (xxxv) of the Constitution. Isaacs J., however, struck an emphatic note of dissent, and the principles enunciated in this note of dissent have received approval from industrial tribunals in this country, and they have been rightly accepted by the Bombay High Court as affording valuable assistance in deciding the question in the present proceedings. Isaacs J. has uttered a note of caution that in dealing with industrial disputes industrial adjudicators must be conversant with the current knowledge on the subject and they should not ignore the constant currents of life, around them for otherwise it would introduce a serious infirmity in their approach. Dealing with the general characteristics of industrial enterprises the learned judge observed (1) [1952] II L.L.J. 327. that they contribute more or less to the general welfare of the community; and he has reiterat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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