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TMI Blog1958 (11) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... ereira, Fazalbhoy and Desai, respondents Nos. 2, 3 and 4. They carried on their practice as solicitors in the name of Messrs Pereira. Fazalbhoy and Co. until 15th November 1957, when the firm was dissolved. The second petitioner was employed as an assistant accountant in this firm. The first petitioner is a Trade Union and some of its members were the employees in the firm of Messrs. Pereira Fazalbhoy and Co., to which we will hereafter refer as the firm. In August 1957 the first petitioner wrote to the firm an submitted certain demands on behalf of the employees of the firm. The demands related to Bonus for the years ending 31st March 1955, 31st March 1958 and 31st March 1957 and to certain other matters. As no agreement could be reached between the parties, conciliation proceedings were started. Thus Conciliation Officer could not also bring about a settlement between the parties. He submitted a report to Government, who on 3rd February 1958 referred the dispute in regard to bonus for two years ending 31st March 1956 and 31st March 1957 to an Industrial Tribunal under Sub-section (5) of Section 12 of the Industrial Disputes Act. Respondents Nos. 2 to 4 to whom I will hereafter re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person." Another definition, which is material, is that of the word "workman" who is defined as meaning any person employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward. The rest of the definition of this word is not material in this case. "Workman" is therefore defined as meaning any person employed in any industry. "Industrial dispute" means so far as is material a dispute between employers and workmen, that is, between employers and persons employed in an industry. Before there can, therefore, be a workman or an industrial dispute, there must first be an industry. 3. The principal question to be decided in this application, therefore, is whether the profession of a solicitor can be said to be an industry within the meaning of the Act. Mr. Gokhale, who appears on behalf of the petitioners, has strenuously contended that such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de or manufacture. In Hospital Mazdoor Sabha v. State of Bombay 58 Bom LR 769 at p. 774 it was observed that the expression "undertaking" is a term of wide import and is nothing more than any work or project which a person might engage in and that such work or project might have no commercial implications. The word "undertaking" is also used in Section 25FF and Section 25FFF of the Act. Section 25FF begins with the words "Where the ownership or management of an undertaking is transferred...." In these sections "undertaking" is therefore used in the sense of an enterprise which can be owned and transferred. A solicitor's work, which depends entirely on his own personal intellectual ability, is not capable of being transferred. Consequently it would not be an "undertaking" within the meaning of the Act. 5. The word ''calling" is however very wide. According to its dictionary meaning, it means one's usual occupation, vocation, business or trade. Both the words "business" and "calling" are therefore words of wide connotation. If therefore, the ordinary dictionary meaning is to be given to them, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are necessary in order to constitute industry. There must be a business, trade, undertaking, manufacture or calling, and secondly them must be relationship of master and servant. If these two are present, the enterprise will be an industry within the meaning of the Act. Mr. Gokhale has, therefore urged that every occupation or business, in which persons are employed, is an industry within the meaning of the Act. This argument ignores the basic concept of industry, which is that there must be joint endeavour of both the employer and the employed. The argument, if accepted, would lead to astounding results. The business of a hawker would have to be held to be an industry if the employs a laborer to carry his basket. So also the business of a petty shop-keeper, like that of a pan-shop, will have to be held to be an industry, if a servant is employed to sweep and clean the shop. A doctor who visits his patients would be deemed to be engaged in an industry, if he employs a peon to carry his bag containing instruments and medicines. Several other similar instances could be envisaged. We have no doubt that the Legislature could not have intended that the Act should result in such drastic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween Municipalities and their employees in branches of work that can be regarded as analogous to the carrying on of a trade or business. It is also not in dispute that the word 'industry' can no longer be limited to enterprises which are engaged in the production of wealth, goods or other commodities, Relying on the observations of Isaacs J. in Federated State School Teachers Association of Australia v. State of Victoria (1929) 41 CLR 569, Mr. Gokhale has contended that rendering of services may by itself be sufficient to make an organisation an industry. We are inclined to accept this argument, particularly having regard to the fact that the second part of the definition includes any service within the term 'industry'. But as I will point out presently, in the same case, for a service to be regarded as industry, Isaacs, J. himself considered co-operation between employer and employees as being a necessary requisite. 9. The pursuit of a learned profession like that of a solicitor does not require any co-operation of labour. A solicitor offers his own personal services or, to put it in different words, is paid for the legal advice and legal assistance given by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cs and Rich JJ. In their judgment at p. 554 they formulated the concept of an industrial dispute in these words: Industrial disputes occur when in relation to operations in which capital and labour are contributed in co-operation 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 cooperation. 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 co-operation of capital and labour and do not come within the sphere of industrialism.... It implies that 'industry', to lead to an industrial dispute, is not, as the claimant contends, merely industry in the abstract sense as if it alone effected the result, but it must be acting and be considered in association with its co-operator 'capital' in some form so that the result is, in a sense, the outcome of their combined efforts." Co-operation of capital and labour and their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; and 'labour'. Everyone knows that means, in the context, the co-operation of employer and employed, the words "capital and labour" being representative of the two classes of co-operators. They are the 'partners' referred to by Professor Hearn in his work mentioned. In his recent work Labour ' Relations in Industry, Dwight Lowel Hoopingarner, M. A. formerly lecturer, Harvard University, says: There is a marked division of the active parties in industry into the two groups of employing and employed. At p. 577 Isaacs J. rejected the argument that an industrial dispute cannot possibly occur except where there is furnished to the public - the consumers by the combined efforts of employers and employed, wealth in the sense of "tangible, ponderable, corpuscular wealth." In his opinion an organisation for service could also be regarded as an industry. On the same p. 577 he observed: 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases are clearly distinguishable from the present one. Neither the Western India Automobile Association in the first case, nor the Hospital in the second case, could be run without the co-operation of labour. The running of these institutions did not depend solely upon the personal skill, knowledge or effort of any individual. We have also not been able to find anything in the judgments in these cases, which would indicate that co-operation of labour was regarded as not being a necessary element of the concept of industry. (15) In the third Nagpur Corporation case 60 Bom LR 180 : AIR 1958 Bom 231, the decision in the Hospital Mazdoor Sabha case 58 Bom LR 769 was followed & it was held that the question whether any particular activities of a local authority are industrial activities or not can only be decided after bearing in mind the definition of the term "industry" contained in the Act, and examining the activities of those as well as of other departments in the light of that definition as well as of the test laid down in the Hospital Mazdoor Sabha case. In his judgment at p. 186 Mudholkar J. cited the first sentence in the passage from the judgment of Isaacs and Rich ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in producing the work does not mean that the work is joint. The work remains the individual effort. The publication of the work is not the work itself, Similarly a professional man like a lawyer or a solicitor who renders his professional services to his clients and provides them with his professional skill and experience does an individual work. The fact that communications have to be carried on and correspondence has to be typed by a typist, the fact that accounts have to be kept which usually have to be done by accountants, and the fact that assistants are employed to assist, do not make the result or the product joint as in an industry. The product remains the individual product. A solicitor who gives legal advice to his client may give it orally, or may write it in his own hand. The fact that instead of writing his legal advice in his Own hand he employs a typist does not make it an industry, nor does it make the legal advice the joint product between him and the typist. At p; 468 he observed; In an expanding society with broadening concept of business and industry the word 'industry' is also enlarging its ambit, scope and expression. Even then outside the expanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r costs made in favour of the firm. This cannot be regarded as dealing in the business of buying and selling property. It appears from para 11 of the petition that the petitioners had requested the Tribunal to direct the respondents to produce four documents, the three deeds of partnership executed in 1929, 1945 and 1946, and the document executed when. Mr. Amin retired from the partnership in November 1935. The documents executed prior of 1946 were obviously irrelevant. They had no connection with the firm in which the petitioners were employed. With regard to the deed of partnership executed in 1946, it is admitted that this document was produced by the respondents in Court. It was shown to the Tribunal. The petitioners have alleged in Clause (u) of para 11 of the petition that this document was not shown to them. The respondents have in their affidavit denied in general terms the allegations made by the petitioners in para 11 of their petition. Even assuming that this document was not shown to the petitioners, we do not think that any injustice has been caused to them, because the only transaction alleged by them, which took place during the time the firm, in which they were emp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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