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Firm Tulsiram Sadanand Sarda Vs. Assistant Commissioner of Labour, Nagpur - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 135 of 1960
Judge
Reported in(1961)63BOMLR342; [1961(3)FLR131]; (1961)ILLJ711Bom
ActsIndustrial Disputes Act, 1947 - Sections 2 and 16
AppellantFirm Tulsiram Sadanand Sarda
RespondentAssistant Commissioner of Labour, Nagpur
Excerpt:
c.p. and berar industrial disputes settlement act (xxiii of 1947), sections 2(14), (10), (11), 16(2) - partners of firm carrying on wholesale business of purchasing and selling bales of cotton and yarn in shop situated in their residential premises -- respondent engaged in shop for rendering domestic and personal service -- whether respondent working as employee in industry within meaning of section 2(14) of act.;the test for deciding whether any business, trade, or a calling of an employer, service, employment, avocation or occupation of an employee constitute an industry within the meaning of the c.p. and berar industrial disputes settlement act, 1947, is not only the character of the activities indicated by the words included in the definition contained in the act but their form and.....badkas, j.1. petitioners 2 and 3 are the partners in the firm tulsiram sadanand sarda and own a shop in which they carry on the trade of purchasing and reselling of cloth and yarn on wholesale basis. bales of cotton and yarn are purchased from mills and other dealers and the same are resold on wholesale basis in the same form. all the purchases and resales are effected by the petitioners themselves. the petitioner-firm is also registered under the central provinces and berar shops and establishments act, 1947. 2. respondent 5, pandurang rajaram kothale, was an employee of the petitioners. according to the petitioners his duties were domestic in nature. the services of respondent 5 were terminated on 2 june, 1958. thereafter, he made an application to the labour commissioner, nagpur, under.....
Judgment:

Badkas, J.

1. Petitioners 2 and 3 are the partners in the Firm Tulsiram Sadanand Sarda and own a shop in which they carry on the trade of purchasing and reselling of cloth and yarn on wholesale basis. Bales of cotton and yarn are purchased from mills and other dealers and the same are resold on wholesale basis in the same form. All the purchases and resales are effected by the petitioners themselves. The petitioner-firm is also registered under the Central Provinces and Berar Shops and Establishments Act, 1947.

2. Respondent 5, Pandurang Rajaram Kothale, was an employee of the petitioners. According to the petitioners his duties were domestic in nature. The services of respondent 5 were terminated on 2 June, 1958. Thereafter, he made an application to the Labour Commissioner, Nagpur, under S. 16 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947 (Act XXIII of 1947). The petitioners objected to the tenability of the application on various grounds. The objections of the petitioners were overruled and by his order, dated 14 April, 1959, the Assistant Commissioner of Labour, who dealt with the case, passed an order awarding him back-wages from the date of termination of service and further a sum of Rs. 300 by way of compensation. The petitioners then filed a revision before the State Industrial Court, Nagpur, against the order passed by the Assistant Commissioner of Labour. In revision, the order passed by the Assistant Commissioner of Labour, Nagpur, was confirmed. The petitioners have now filed this special civil application for setting aside the orders passed by the Assistant Commissioner of Labour and the State Industrial Court, Nagpur.

3. The contentions raised by the petitioners were (i) that respondent 5 was not an employee working in an industry within the meaning of the provisions of the Central Provinces and Berar. Industrial Disputes settlement Act, 1947. According to the petitioners, their shop was not an industry or an industrial establishment. According to them, their business consisted of making purchases and reselling of cloth and yarn in the form of bales and that this business was carried on by themselves personally. According to them, respondent 5 was only a domestic employee and, therefore, it cannot be considered that he is an employee working in an industry. The second contention raised by the petitioners was that the petitioner-firm was registered as a shop under the Central Provinces and Berar Shops and Establishments Act, 1947, and that it is governed as regards termination of services of an employee by the provisions of the said Act. Therefore, according to the petitioners, if the dismissal of respondent 5 is held to be wrong, the same would be governed by the said special Act and not by the provisions of the Central Provinces and Berar Industrial Disputes Settlement Act. 1947. Thirdly, it was contended that the Assistant Commissioner of Labour was not duly empowered by a notification to try the case of respondent 5 as contemplated by S. 16 of the Central Provinces and Berar Industrial Disputes Settlement Act, and as such the Assistant Commissioner of Labour had no authority under law to take cognizance of the application made by respondent 5 under S. 16 of the Industrial Disputes Settlement Act. It was also urged that in any case the dismissal of respondent 5 was in accordance with law as the petitioner-firm was ready and willing to pay one month's wages to him in lieu of notice as provided in S. 23 of the Central Provinces and Berar Shops and Establishments Act and also under the general law of master and servant. On the above contentions, it has been pressed by the petitioners that the orders passed by respondents 1 and 2 should be quashed.

4. The case was argued on all the four contentions raised by the petitioners. As, in our view, it is possible to dispose of this special application on consideration of the first contention, we take that contention first for decision. Sub-section (2) of S. 16 of the Central Provinces and Berar Industrial Disputes Settlements Act, 1947, provides :

'Any employee, working in an industry to which the notification under Sub-section (1) applies, may, within six months from the date of such dismissal, discharge, removal or suspension, apply to the Labour Commissioner for reinstatement and payment of compensation for loss of wages.'

Therefore, under the above quoted provision it is necessary for the applicant under S. 16 of the Industrial Disputes Act to prove that he is an employee working in an industry to which the notification under Sub-section (1) applies. Under notification issued under Sub-section (1) of S. 16, the State Government directs that industrial disputes touching the dismissal, discharge, removal or suspension of any employee in any industry in which the said Act is in force shall be referred to the Labour Commissioner for decision. Therefore, the only question that needs consideration is whether respondent 5 is an employee working in an industry.

5. The petitioners' case is that the two partners, petitioners 2 and 3 are maintaining the shop in their residential premises in which they do business of purchasing and selling cloth and yarn on wholesale basis. They have employed one person who keeps accounts and also acts as a cashier. According to the petitioners, respondent 5 was only a domestic servant who did the work of sweeping the premises and some odd jobs, such as bringing vegetables or flowers. Respondent 5 in his evidence has also stated that he worked as a miscellaneous peon, used to go to banks and also at times did domestic duties. Therefore, according to the petitioners, the business which they carried on was managed by themselves and that respondent 5 was only a domestic servant. It is, therefore, contended that the petitioners' shop is not an industry within the meaning of the Industrial Disputes Settlement Act and, therefore, respondent 5 is not an employee working in an industry.

Section 2(11) of the Act defines employer and includes -

'(a) an association or a group of employers;

(b) any agent of an employer;

(c) where an industry is conducted or carried on by a department of the Provincial Government the authority prescribed in that behalf, and where no such authority has been prescribed, the head of such department;

(d) where an industry is conducted or carried on by or on behalf of a local authority, the chief executive officer of such authority;

(e) where the owner of any industry in the course of or for the purpose of conducting such industry contracts with any other person for the execution by or under the control of such person of the whole or any part of any work which is ordinarily carried on by the said industry, the owner of such industry.'

Section 2(10) defines the word employee :

'employee means any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or reward in any industry (and includes an employee dismissed, discharged or removed on account of any industrial dispute).'

Word 'industry' is defined in S. 2(14) thus :

'industry includes -

(a) any business, trade, manufacturing or mining undertaking or calling of employers;

(b) any calling, service, employment, handicraft or industrial occupation or avocation of employees; and

(c) any branch of an industry or a group of industries.'

6. Taking literally, the definitions are so wide that all relationships of an employer and employee are covered by them and no case of an employee can be imagined as would be excluded from the wide ambit of these definitions. The definition of industry is inclusive and includes in the ambit of the definition various types of activities which may be undertaken by an employer or an employee. In terms the words, such as, business, trade, calling, service, employment, avocation simply indicate an activity and not a concrete form which such an activity should take. The ordinary meaning of the word 'industry' as given in the Webster's Dictionary is :

'any department or branch of art, occupation, or business, especially one which employs much labour and capital and is a distinct branch of trade,' 'systematic labour or habitual employment; especially human exertion employed for creation of value regarded by some as spicies of capital or wealth; labour.'

Concept of industry thus connotes an important element of co-operation between capital and labour. The employer brings capital and labour together for purposes of achieving some end such as production of wealth or rendering of some service to the community. It is an enterprise in which in the nature of things, employment of labour in an organized form is a necessary element. Such an enterprise necessarily taken the form of joint effort of employer and labour.

7. It has been observed in Maxwell on Interpretation of Statutes (10th Edn.) at p. 80 :

'It is in the interpretation of general words and phrases that the principle of strictly adapting the meaning to the particular subject-matter with reference to which the words are used finds its most frequent application. However wide in the abstract, they are more or less elastic, and admit of restriction or expansion to suit the subject-matter. While expressing truly enough all that the legislature intended, they frequently express more, in their literal meaning an natural force; and it is necessary to give them the meaning which best suits the scope and object of the statute without extending to ground foreign to the intention. It is, therefore, a canon of interpretation that all words, if they be general and not express and precise, are to be restricted to the fitness of the matter.'

At p. 94 the same author observes :

'Sometimes, to keep the Act within the limits of its object, and not to disturb the existing law beyond what the object requires, it is construed as operative between certain persons, and in certain circumstances, or for certain purposes only, though the language expresses no such circumscription of the field of its operation ....'

The etymology of the words used in the legislative enactments is not always helpful and at times is misleading. It has been contended on behalf of the petitioners that while construing the definition of 'industry' it is necessary to examine the object and scope of the Act for proper appreciation of the concept of industry. The contention of the petitioners is that their trade activity of purchasing and selling bales of cloth and yarn on wholesale basis is not an industry because the form of their business did not conform with the concept of industry as is and has to be understood according to its recognized conception. Various precedents were cited before us indicating that the scope and ambit of this definition had to be restricted in spite of the all-prevading ambit of the words in the context of facts obtaining in those cases.

8. In the case of National Union of Commercial Employees v. Meher : (1959)IILLJ38Bom decided by the Bombay High Court, the principal question to be decided was whether establishment of a solicitor's office could be called an industry within the meaning of the Industrial Disputes Act (XIV of 1947). In this connexion the definition of 'industry' as given in S. 2(j) of the said Act was considered. That definition is not materially different from the definition of industry as given in the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, and may be usefully reproduced :

'(j) 'industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.'

9. No doubt, in that case the question involved related to the character of the calling in relation to its subject-matter, that is, profession of a solicitor and the question involved in the instant case, relates to business or trade activity vis-a-vis the nature of labour employed in that activity. The word calling used in the definition of the Central Act would if literally interpreted cover the profession of a solicitor. The word calling, according to the dictionary meaning means, one's usual occupation, vocation, business or trade. It was, however, observed in the above decision that the words 'business' and 'calling' are words of wide connotation and that if the ordinary dictionary meaning was to given to them it would be difficult to hold that the practice of the profession of a solicitor is not an industry. It was remarked that if such interpretation was given to the word 'calling' as occurring in the dictionary, it would not be easy to conceive of any profession, which would not then fall within the definition of this expression. But it was held that this could not be the object of the legislature and that the words 'business' and 'calling' had to be read in their context and in conjunction with other words, which are used in the same definition and from which they must take their colour. Therefore, while analysing the concept of the word 'industry' it was explained that only that business, trade, undertaking or calling can be held to be an industry which requires co-operation of both the employer and the employee for carrying on that business, trade, undertaking or calling. After examining the arguments of counsel appearing for the employees it has been observed in the judgment at p. 42 :

'Sri Gokhale has contended that under the definition of the word 'industry' given in the Act, two things are necessary in order to constitute industry. There must be a business, trade undertaking, manufacture or calling, and, secondly, there must be relationship of master and servant. If these two are present, the enterprise will be an industry within the meaning of the Act. Sri 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 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 he employs a labourer to carry his basket. So also the business of a petty shop-keeper, like that of a panshop, 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 and serious consequences.'

10. The above quoted observations pose a problem and also indicate an answer; the said answer being that the trade, avocation or business activities of the nature mentioned in the observations could not be classed as 'industry' within the meaning of the said Act. Their lordships of the Supreme Court have also discussed this definition of the word 'industry' occurring in the Central Act in the case in State of Bombay v. Hospital Mazdoor Sabha : (1960)ILLJ251SC .

'It is clear, however, that though S. 2(j) uses words of very wide denotation, a line would have to be drawn in a fair and just manner so as to exclude some callings, services or undertakings. If all the words used are given their widest meaning, all service and all callings would come within the purview of the definition; even service rendered by a servant purely in a personal or domestic matter or even in a casual way would fall within the definition. It is not and cannot be suggested in its wide sweep the word 'service' is intended to include service however rendered in whatsoever capacity and for whatsoever reason. We must, therefore, 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); and that no doubt is a somewhat difficult problem to decide.'

11. These observations also appropriately apply to the definition of the word 'industry' as given in the Central Provinces and Berar Industrial Disputes Settlement Act, 1947. The definition of 'industry' as given in S. 2(14) of the Central Provinces and Berar Industrial Disputes Settlement Act was itself considered by their lordships of the Supreme Court in the decision in Nagpur Corporation v. Its employees : (1960)ILLJ523SC . After discussing the rule of construction 'noscitur a sociis' their lordships observed at p. 530 :

'....... The inclusive definition is a well-recognized device to enlarge the meaning of the word defined, and, therefore, the word 'industry' must be construed as comprehending not only such things as it signifies according to its natural import but also those things the definition declares that it should include [see Stroud's Judicial Dictionary, Vol. 2, p. 1416]. So construed, every calling, service, employment of an employee or any business, trade or calling of an employer will be an industry. But such a wide meaning appears to overreach the objects for which the Act was passed. It is, therefore, necessary to limit its scope on permissible grounds, having regard to the aim, scope and the object of the whole Act .......'

There is thus no doubt that the definition of 'industry' as given in S. 2(14) of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, is too sweeping and general and if literally applied, may transgress the intentions of the legislation. The definition has, therefore, to be construed in the light of the aim, scope and object of the whole Act.

12. This Act was passed in the year 1947 and in the statement of objects and reasons it was stated that after the Second World War there was an epidemic of strikes unprecedented in the annals of the Indian industry resulting in a serious lowering of the production of essential consumer goods. The conflict between management and labour had reached a stage when Government thought it necessary to step in and provide measures for settlement of industrial disputes. As the existing law in the form of the Trade Unions Act of 1926 was unable to deal with the situation, an Act was framed under item 29 of the Legislative List III of the Government of India Act which was 'trade unions, industrial and labour disputes.' Present item in the Constitution is item 22, in List III, Concurrent List. The preamble of the Act states that the Act was intended to make provision for the promotion of peaceful and amicable settlement of industrial disputes by conciliation and arbitration and for certain other purposes. The object to be achieved by the Act is promotion of peaceful and amicable settlement of industrial disputes between the employer and the employee in an industry. The Act aims at achieving industrial peace and also social justice. The arena of industrial conflict and the reasons for such conflict are well-known. They are not disputes in relation to the terms of a contract between an employer and an employee. With the new labour legislations individual contract is being substituted by what may be called an industrial agreement because an employee happens to be employed in an industry. In an industrial concern which can legitimately find place under the category of industry, the relationship of the employer and the employee is governed by the industrial agreements as distinguished from individual contracts between an employer and an employee. They are commonly called collective contracts and are reached by collective bargaining and usually take the form of standing orders framed for a particular industry according to the relevant provisions of some labour legislation. Such collective agreements constitute the general conditions of employment in a particular industry and are distinguishable from mere contract of service entered into between an individual employer and an individual workman.

13. In Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association (1908) 6 C.L.R. 309 the learned Chief Justice of the Australian High Court while discussing the implications of the term industrial dispute has observed (pp. 332-333) :

'. . . It must, of course, be a dispute relating to an 'industry' and, in my judgment, the terms 'industry' should be construed as including all forms of employment in which large numbers of persons are employed the sudden cessation of whose work might prejudicially affect the orderly conduct of the ordinary operations of civil life ...'

Thus the basic objective of the legislation intended for bringing about industrial peace is to provide legislative governance of industrial disputes, where they can originate, viz., in such concerns where labour in large number is employed and in which there is scope for collective bargaining and necessity for conciliation or arbitration of industrial disputes. The definition of an industrial dispute as given in the Act does not go counter to this conception of the objective of the Act. It is difficult to lay down with rigidity as to what should be the number of employees employed in a concern for classifying a particular trade or business activity as an industry; much will depend on the nature and character of the organization of labour force that is put into service for realizing the fruits of the activity that is intended to be achieved by the employment of such labour force. Each case will have to be decided on its own facts.

14. Various legislative enactments dealing with labour and its employers such as, the Trade Unions Act, 1926, Factories Act, 1934, Industrial Employment (Standing Orders) Act, 1946, Employees' Provident Funds Act, 1952, and the Plantation Labour Act, 1951, were referred to at the Bar for indicating that operations of the material provisions of the above Acts depended on the existence of a particular number of workmen or employees in an industrial establishment dealt with by those Acts.

15. It would appear that the definitions of 'employer,' 'employee,' 'industrial dispute,' etc., are framed in relation to the word 'industry' and as such are not complete in themselves. The definitions of 'strike,' 'unions' and 'settlement,' indicate in some measure the idea of labour force as an essential factor in what has to be construed as an industry within the meaning of the Act.

16. Chapter I of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, deals with preliminary matters and enacts definitions. Chapter II deals with recognized unions. Section 2(28) defines union as meaning a trade unions registered under the Indian Trade Union Act, 1926 (XVI of 1926). Under the trade Unions Act the trade union is a combination, temporary or permanent, formed primarily for the purpose of regulating relations between the workmen and the employers and it could be registered only on an application of seven or more members of the trade union and by subscribing their names to the rules of the trade union. Under the Industrial Disputes Settlement Act, a union can apply for being registered as a recognized union for the purposes of the Act. A union cannot be registered unless it has a membership of not less than between fifteen and twenty percent according as the State Government may prescribe for that local area of the employees employed in the industry in that area. Chapter IV deals with standing orders. Section 10 directs that every employer shall, within two months of the date of notification under Sub-section (3) of S. 1, submit to the Labour Commissioner for approval a copy of the standing orders concerning the relations between him and his employees with regard to all industrial matters mentioned in Sch. I, Section 31 enacts that if an employer intends to effect a change in any standing orders settled under S. 30 he shall give a notice of such intention to the representatives of employees. Section 20 provides for giving of notice by a representative of employees if a change in any standing order is desired. Section 35 provides that where the labour officer acts as a representative of employees, he shall, before entering into any agreement with the employer, place the terms of such agreement before a meeting of the employees concerned. The terms of the agreement are deemed to be accepted by employees if majority of the employees accept them. Section 37 provides for conciliation proceedings when no agreement can be reached between an employer and his employees, in respect of any particular industrial dispute. If settlement of a dispute is arrived at in conciliation proceedings, a memorandum of such settlement has to be signed by the employer and the representative of employees. Chapter V deals with arbitration. Section 38 dealing with arbitration provides that any employer or representative of employees may by a written agreement refer a dispute to arbitration. Section 38A provides for reference of an industrial dispute to arbitration on failure of conciliation proceedings. Chapter VI deals with illegal strikes and lockouts. Section 2(27) defines 'strike' as meaning a total or partial cessation of work by employees employed in an industrial undertaking acting in combination or a concerted refusal or a refusal under a common understanding of employees to continue to work. Section 2(24) defines 'representative of employees' as meaning

(i) where there is a recognized union in any industry in a local area, such union;

(ii) where there is no recognized union, such representatives not being more than five as may be elected in the prescribed manner by the employees directly affected by the change; or

(iii) in case where representatives are not elected under Clause (ii) and in all other cases not falling under any of these clauses, the labour officer.

The above provisions will have no operative force or significance unless the business or trade activity has labour force employed in it in measure and character as contemplated by those provisions. All the provisions aim at achieving settlement and arbitration of industrial disputes. That being the objectives of the Act, existence of organized labour force in the activity as active and co-operative agent for realizing the objective of the activity is an essential factor for including the activity on the part of the employer and employee or the employee and the employer in the definition of industry as given in the Act.

17. In the case of National Union of Commercial Employees v. Meher : (1959)IILLJ38Bom (supra) the question no doubt related to the business activity of a solicitor's office. A distinction had to be made by restricting the scope of the definition as already observed.

18. In the case of State of Bombay v. Hospital Mazdoor Sabha : (1960)ILLJ251SC (supra) their lordships of the Supreme Court had to decide whether the J.J. Group of Hospitals conducted and run by the State of Bombay amounted to an undertaking under S. 2(j) or the Industrial disputes Act, 1947, and the relevant provisions of the Act were applicable to the group hospitals. The main question raised on behalf of the Bombay State was that the Group of J.J. Hospitals was not an industry and was not carrying on an activity involving investment of capital for profit or by way of production or sale of goods by the employment of labour. The contention was negatived. Their lordships, however, posed the question as to what should be the essential attributes the presence of which makes an activity an undertaking within S. 2(j) on the ground that it is analogous to trade or business The answer given is in the following words at p. 258 of the report :

'We have yet to decide what are the attributes the presence of which makes an activity an undertaking 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 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 organized or arranged in a manner in which trade or business is generally organized 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 organized 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 of the features which are distinctive of activities to which S. 2(j) applies.'

19. In the case of Nagpur Corporation v. Its Employees : (1960)ILLJ523SC the question involved was whether the activity of the municipal corporation is an industry. The question had to be answered in the light of the definition of industry as given in S. 2(14) of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947. In answering the question their lordships of the Supreme Court cautioned necessity for limiting the wide scope of the definition which appeared to overreach the object for which the Act was passed. The scope of the definition was then limited by excluding the regal and sovereign powers of the State on the ground that it could not have been in the contemplation of the legislature to bring in the regal functions of the State within the definition of industry. After consideration of the scope of the Act, the preamble and various other decisions their lordships have observed at p. 531 :

'. . . The word 'employers' in Clause (a) and the word 'employees' in Clause (b) indicate that the fundamental basis for the application of the definition is the existence of that relationship. The cognate definitions of 'industrial dispute,' 'employer,' 'employee,' also support it. The long title of the Act as well as its preamble show that the Act was passed to make provision for the promotion of industries and peaceful and amicable settlement of disputes between employers and employees in an organized activity by conciliation and arbitration and for certain other purposes. If the preamble is read with the historical background for the passing of the Act, it is manifest that the Act was introduced as an important step in achieving social justice . . . The history of labour legislation both in England and India also shows that it was aimed more to ameliorate the conditions of service of the labour in organized activities than to anything else. The Act was not intended to reach the personal services which do not depend upon the employment of a labour force.'

In Para. 17 of the judgment it has been further observed :

'The result of the discussion may be summarized thus :

(1) The definition of 'industry' in the Act is very comprehensive. It is in two part : one part defines it from the standpoint of the employer and the other from the standpoint of the employee. If an activity falls under either part of the definition, it will be an industry within the meaning of the Act.

(2) The history of industrial disputes and the legislation recognizes the basic concept that the activity shall be an organized one and not that which pertains to private or personal employment . . .'

The second point in the above observations is relevant for the decision of the question involved in the instant case. No doubt, the two cases before the Supreme Court relate to the character of the activity of the employers and not its form and organization. Their lordships have, however, laid down important tests for deciding what form an activity should possess for its being included in the definition of industry as given in any of the two Acts.

20. The conclusions to which we reach as a result of the above discussion are :

That the definition of industry in S. 2(14) of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, is too wide and comprehensive and needs to be limited in its scope having regard to the aim, scope and object of the whole Act. The various types of activities included in the definition from the view point of an employer and employee indicate only the character of the activity and not the form which it should possess for being classed as an industry within the meaning of the Act.

21. The important test for deciding whether any business, trade, or a calling of an employer, service, employment, avocation or occupation of an employee constitute an industry within the meaning of the Act is not only the character of the activities indicated by the words included in the definition but their form and organization in relation to the employed labour force as an active and creative agent for achieving the fruits of the activity. It should be an activity which is predominantly carried on by employment of organized labour force for the production or distribution of goods or for rendering of material services to the community at large or a part of such community. An activity pertaining to or in relation to private and personal employment has to be excluded from the definition of industry. Considered in this light, the problem posed in the observations quoted above from the case of National Union of Commercial Employees v. Meher : (1959)IILLJ38Bom (supra) can be safely answered.

22. If the above test is applied in the instant case, the petitioner-shop cannot be classed as an industry within the meaning of S. 2(14) of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947. Respondent 5 is not working in an industry. His employment is of the nature of a private and personal employment. He is engaged in the shop for doing miscellaneous odd hobs by rendering domestic and personal service. He cannot be considered as a unit in an organized labour force employed in an industrial establishment. Under S. 16 of the Act only an employee working in an industry can apply to the Labour Commissioner for reinstatement and payment of compensation in case of termination of his services by way of dismissal, discharge or removal. Respondent 5 was not thus entitled to claim the relief nor could the Labour Commissioner grant him that relief under the said provisions of the Act. The orders passed by the Assistant Commissioner of Labour and the State Industrial Court cannot, therefore, be sustained.

23. In the view we have taken, it is not necessary to decide other contentions raised by the petitioners and we leave them undecided.

24. In the result, therefore, the petition is allowed. The rule is made absolute. The orders passed by the Assistant Commissioner of Labour and the State Industrial Court are set aside. Considering all the circumstances of the case, it is ordered that the parties shall bear their own costs throughout.


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