TMI Blog1962 (2) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... the bonus for the two years 1956 and 1957 for adjudication before an Industrial tribunal under section 12(5) of the Industrial Disputes Act (No. 14 of 1947) (hereinafter called the Act). Before the Tribunal, the respondents raised a preliminary objection. They urged that the profession followed by them was not an industry within the meaning of the Act, and so the dispute raised against them by the appellants was not an industrial dispute within the meaning of the Act; the contention was that the dispute not being an industrial dispute under the Act, the reference made by the Government was incompetent and so, the Tribunal had no jurisdiction to adjudicate upon this dispute. The Tribunal upheld the preliminary objection and recorded its conclusion that it had no jurisdiction to adjudicate upon the dispute as it was not an industrial dispute. The order thus passed by the Tribunal was challenged by the appellants before the High Court at Bombay by special Civil Application No. 2789 of 1958 filed under Articles 226 and 227 of the Constitution. The High Court considered the rival contentions raised before it by the appellants and the respondents and came to the conclusion that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whatsoever capacity and for whatsoever reason. (p. 876). That is why this Court proceeded to consider where the line should be drawn and what limitations can and should be reasonably implied in interpreting the wide words used in s. 2(j). In dealing with the somewhat difficult question of drawing a line, this Court observed. , as a working principle, it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking. Such an activity generally involves the co-operation of the employer and the employees; and its object is 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 casual nor must it be for oneself' nor for pleasure. Thus, the manner in which the activity in question is organised or arranged, the condition of the (co-operation between employer and the, employee necessary for its success and its object to render material service to the community can be regarded as some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the employees engaged by the firm for doing different categories of work According to Mr Chari, the employment of (1) [1960] 2S.C.R. 86, differentcategories of staff facilitates the work of the solicitors and it enables them to dispose of more work more quickly and more efficiently and he suggests that the presence of such co-operation between the employees and their employers in the Organisation of the solicitors' firm satisfies the working test laid down case Hospital case [1960] 2 S. C.; R.866. Tn our opinion, the distinction sought to be drawn by Mr. Chari between professional service rendered by an individual acting by himself and that rendered by a firm is not logical for the purPose of the application of the test in question. What is true about a firm of solicitors would be equally true about an individual Solicitor working by himself. As. the firm engages different categories of employees a single solicitor also engages different categories of employees to carry out different types of work and so the presence of co- operation between the employees working in a solicitor's office and their employers the solicitor, could be attributed to 'the work of a sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivities of most of the departments of the textile mills contribute directly in one form or another to the production of textile goods. It may be that even in a textile mill a very small minority of workmen may not be directly concerned with the production of textile goods ; but even so, their work is so integrally connected with the work carried on by the majority of workmen employed that they are treated as forming part of the same labour force. Thus, there can be no doubt that when a textile mill is regarded as an industry, it is, because capital and labour jointly contribute to the' production of goods which is the object of the mill. Let us consider the case of the hospitals. In' the hospitals, the service to the patients begins with proper diagnosis followed by treatment, either medical or surgical, according to the requirements of the case. In the case of medical treatment, the patients receive medical treatment according to the prescription and are kept in the hospital for further treatment. In surgical cases the patients receive surgical treatment by way of operation and then are kept in the hospital for further treatment until they are discharged. During the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciency of the,- solicitor concerned. Subsidiary work which is purely of an incidental type and which in intended to assist, the solicitor in doing his job has no direct relation to the professional service ultimately rendered by the solicitor. For his own convenience, a solicitor may employ a clerk because a. clerk would type his opinion ; for his convenience., a solicitor may employ menial servant to keep his chamber clean and in order ; and it is likely that the number of clerks may be large if the concern is prosperous and so would be the number of menial servants. But the work done either by the typist or the stenographer or by the menial servant or other employees in a solicitor's firm is not directly concerned with the service which the solicitor renders to his client and cannot, therefore, be said to satisfy the test of co-operation between the employer and the employees which is relevant to the purpose. There can be no doubt that for carrying on the work of a solicitor efficiently, accounts have to be kept and correspondence carried on and this work would need the employment of clerks and accountants. But has the work of the clerk who types correspondence or that of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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) In this connection, it would be useful to refer to the observation made by Isaccs and Rich JJ., in the Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation (1919)26C.L.R.508,554. The concept of an industrial dispute , said the learned Judges.,. may thus be formulated: Industrial disputes occur when, in relation to operations in which capital and labour are contributed in cooperation for the satisfaction of human wants or desires, those engaged in co-operation dispute as to the basis to be observed, by the parties engaged, respecting either a share of the product or any other terms and conditions of their co-operation. This formula excludes the two extreme contentions of the claimant and the respondents respectively. It excludes, for instance, the legal and the medical professions, because they are not carried on in any intelligible sense by the Cooperation of capital and labour and do not come within the sphere of industrialism. It incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er than was necessary for the protection of the plaintiff and was, therefore, unenforceable as being in Undue restraint of trade . The argument is that the validity of an agreement between a solicitor and his articled clerk was tested on the ground that it was an agreement in restraint of trade, and so the solicitor's work must be held to be a 'trade, under s. 2(j). There is obviously no force in this argument. If in their deed of partnership the respondents described the work of partnership as the business of solicitors, that can hardly assist the appellants in contending that the work carried on by the firm is industry under s. 2(j). The work of a solicitor is, in a loose sense, of course, of business, and so if the solicitors entered into an agreement in restraint of trade, its validity would have to be judged on the basis that their work in the nature of business. That, however, is hardly relevant in determining the question as to whether the said work is an industry under section 2(j); as we have already made it clear, the definition of the word ,'industry is couched in words of very wide denotation. But that precisely is the reason ,why a line has to be drawn i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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