TMI Blog1970 (1) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. They also raise different questions on merits which will be considered separately. The facts of the three cases may be noticed briefly before we begin to examine the common question of law mentioned above. C.A. No. 1705 of 1969. 2. The Management of Safdarjung Hospital, New Delhi was the respondent in a petition under Section 33C(2) of the Industrial Disputes Act, 1947 in a petition by the present respondent Kuldip Singh Sethi, a Lower Division Clerk in the Hospital, for computation of the amount of salary etc. due to him in the pay scale of store keepers. Kuldip Singh Sethi was appointed as a Store-keeper on October 26, 1956 in the pay scale of ₹ 60--5--75. This scale was revised to ₹ 110--180 on July 1, 1959 in accordance with the recommendations of the Second Pay Commission. Two or three months later the pay was re-fixed and the time scale was ₹ 110--131 with usual allowances. On July 1, 1962 his basic pay was fixed at ₹ 131. On November 26, 1962 the Government of India in the Ministry of Health re-revised the pay scales of Storekeepers to ₹ 130--5--160--8--200--EB--8--280--10--300 with the usual allowances. The order was to take effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that treatment of tuberculosis is a part of research and training and education, and, therefore, the Hospital has affinity to a University and not to a Hospital proper. It is, therefore, contended that this Hospital is not an industry. The Tribunal holds that neither the research carried on, nor the training imparted, nor the existence of the Tuberculosis Association of India with which the Hospital is affiliated makes any difference and the case falls within the ruling of this Court in the Hospital Mazdoor Sabha case . The Tribunal holds the Tuberculosis Hospital, New Delhi to be an industry. C.A. No. 1777 of 1969. 5. The appeal arises from a writ petition filed in the High Court of Patna. The Kurji Holy Family Hospital took disciplinary action against two of its employees and the matter was taken up by the Kurji Holy Family Hospital Employees Association and the State of Bihar made a reference to the Labour Court, Patna under Section 10 of the Industrial Disputes Act. Before the Tribunal, the Management of the Hospital took the objection inter alia that a hospital was neither a trade nor a business, nor an industry as defined in the Industrial Disputes Act and as such the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... great particularity defined itself. Examining the content of the definitions this Court came to certain conclusions and held in their light that a non-proprietary members' club was not an industry. 8. The reasoning in the Gymkhana Club case formed the basis of an attack on the former ruling in the Hospital Mazdoor Sabha case by the Managements of the three Hospitals which are appellants here. The other side relied upon the ruling and the amendment of the Industrial Disputes Act by which 'Service in hospitals and dispensaries' has now been added as item No. 9 in the First Schedule, as one of the industries which may be declared to be public utility services under Sub-Clause (vi) of Clause (n) of Section 2 of the Act. It is claimed that this is a legislative determination of the question whether hospital is an industry or not. It has, therefore, become necessary to cover some of the ground covered in the Gymkhana Club case. To begin with we may once again refer to the relevant definitions contained in the Act for they must necessarily control our discussion. 9. The Industrial Disputes Act, as its title and indeed its whole tenor disclose, was passed to make provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... somewhat qualified. It is to be noticed that this definition modifies somewhat the definition of 'industry' in Section 4 of the Commonwealth Conciliation and Arbitration Act 1909-1970) (Acts Nos. 13 of 1904 and 7 of 1910) of Australia where the definition reads : 'industry' means business, trade, manufacture, undertaking, calling, service or employment, on land or water, in which persons are employed for pay, hire, advantage or reward, excepting only persons engaged in agricultural, viticultural, horticultural, or dairying pursuits. Although the two definitions are worded differently the purport of both is the same. It is not necessary to view our definition in two parts. The definition read as a whole denotes a collective enterprise in which employers and employees are associated. It does not exist either by employers alone or by employees alone. It exists only when there is a relationship between employers and employees, the former engaged in business, trade, undertaking, manufacture or calling of employers and the latter engaged in any calling, service, employment, handicraft or industrial occupation or avocation. There must, therefore, be an enterprise in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers are carrying on any business, trade, undertaking, manufacture or calling of employers. If they are not, there is no industry as such. What is meant by these expressions was discussed in a large number of cases which have been considered elaborately in the Gymkhana Club case. The conclusion in that case may be stated : Primarily, therefore, industrial disputes occur when the operation undertaken rests upon cooperation between employers and employees with a view to production and distribution of material goods, in other words, wealth, but they may arise also in cases where the cooperation is to produce material services. The normal cases are those in which the production or distribution is of material goods or wealth and they will fall within the expressions trade, business and manufacture. The words 'trade', 'business', 'manufacture' and 'calling' were next explained thus: The word 'trade' in this context bears the meaning which may be taken from Halsbury's Laws of England, Third Edn. Vol. 38 p. 8-- (a) exchange of goods for goods or goods for money; (b) any business carried on with a view to profit, whether manual, or m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owledge, skill or dexterity for the production of a result. Such services being given individually and by individuals are services no doubt but not material services. Even an establishment where many such operate cannot be said to convert their professional services into material services. Material services involve an activity carried on through co-operation between employers and employees to provide the community with the use of something such as electric power, water, transportation, mail delivery, telephones and the like. In providing these services there may be employment of trained men and even professional men, but the emphasis is not on what these men do but upon the productivity of a service organised as an industry and commercially valuable. Thus the services of professional men involving benefit to individuals according to their needs, such as doctors, teachers, lawyers, solicitors etc. are easily distinguishable from an activity such as transport service. The latter is of a commercial character in which something is brought into existence quite apart from the benefit to particular individuals. It is the production of this something which is described as the production of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised between employers and their employees or between employers and employers or between employees and employees in relation to the employment or non-employment or the terms of employment or with the conditions of labour of any person, there must be first established a relationship of employers and employees associating together, the former following a trade, business, manufacture, undertaking or calling of employers in the production of material goods and material services and the latter following any calling, service, employment, handicraft, or industrial occupation or avocation of workmen in aid of the employers' enterprise. It is not necessary that there must be a profit motive but the enterprise must be analogous to trade or business in a commercial sense. 20. We do not find it necessary to refer to the earlier cases of this Court from which these propositions have been deduced because they are all considered in the Gymkhana Club case . We accept the conclusion in that case that: ...before the work engaged in can be described as an industry, it must bear the definite character of 'trade' or 'business' or 'manufacture' or 'calling' or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, there was no room for the other proposition that privately run hospitals may in certain circumstances be regarded as industries. The expression 'satisfying material human needs' was evolved which bore a different meaning. These observations were apparently based on the observations of Isaacs and Rich JJ. in Federated Municipal and Shire Council Employees of Australia v. Melbourne Corporation, 26 C.L.R. 508 but they were : Industrial disputes occur when, in relation to operations in which capital and labour are contributed in cooperation for the, satisfaction of human wants and desires, those engaged in co-operation dispute as to the basis to be observed, by the parties engaged, respecting either a share of the produce or any other terms and conditions of their co-operation. ...The question of profit making may be important from an income-tax point of view, as in many municipal cases in England; but, from an industrial dispute point of view, it cannot matter whether the expenditure is met by fares from passengers or from rates. The observations in the Australian case only indicate that in those activities in which government takes to industrial ventures, the notion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definition answer the test of an industry run on commercial lines to produce something which the community can use. These are brought into existence in a commercial way and are analogous to business in which material goods are produced and distributed for consumption. 26. When Parliament added the sixth clause under which other services could be brought within the protection afforded by the Act to public utility services, it did not intend that the entire concept of industry in the Act, could be ignored and anything brought in. Therefore it said that an industry could be declared to be a public utility service. But- what could be so declared had to be an industry in the first place. We are concerned with the addition of item 9 'service in hospitals and dispensaries'. The heading of the First Schedule speaks again of industries which may be declared to be public utility services. The original entries were five and they read : 1. Transport (other than railways) for the carriage of passengers or goods, by land, water or air (now air is omitted). 2. Coal 3. Cotton textiles. 4. Food stuffs 5. Iron and steel. It is obvious that general headings are given here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would largely render useless all the definitions in the Act regarding industry, industrial disputes etc., in relation to the scheduled items. Parliament has not attempted to declare that notwithstanding the definitions of 'industry', 'industrial disputes', 'workman' and 'employer', every hospital is to be regarded as an industry. All that has been provided is that an 'industry' may be notified as a public utility service. That is insufficient to convert non-industries under the Act to industries. 29. We now take up the individual cases. C.A. No. 1705 of 1969. 30. It is obvious that Safdarjung Hospital is not embarked on an economic activity which can be said to be analogous to trade or business. There is no evidence that it is more than a place where persons can get treated. This is a part of the functions of Government and the Hospital is run as a Department of Government. It cannot, therefore, be said to be an industry. 31. In this case the petitioner chose to be a Lower Division Clerk. The amount of security which he had to furnish in the jab of a Store-keeper was also refunded to him. He had applied for the post on May 31, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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