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Indian Navy Sailors' Home Vs. Bombay Gymkhana Club Caterers and allied Employees' Union and another (11.09.1985 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 1664/84
Judge
Reported in1986(2)BomCR248; (1986)88BOMLR1; (1986)IILLJ154Bom; 1986MhLJ45
ActsIndustrial Disputes Act, 1947 - Sections 2 and 10
AppellantIndian Navy Sailors' Home
RespondentBombay Gymkhana Club Caterers and allied Employees' Union and another
Excerpt:
.....act (xiv of 1947), sections 2(j), 2(a)(i), 10(1) - dispute between civilian employees of indian navy sailors' home and its management--indian navy sailors' home whether can be considered as 'industry' under section 2(j)--in dispute between it and its civilian employees whether central government or state government is 'an appropriate government' to make reference under section 10(1).;the definition of 'industry' as defined in section 2(j) of the industrial disputes act, 1947 has a wide import. every aspect of activity which can be said to be analogous to the carrying on of trade or business would be covered by the definition. even profit motive is not essential for an industry. the true focus of the definition is functional and the decisive test is the nature of the activity with.....1. the petitioner is indian navy sailors' home. the 1st respondent-bombay gymkhana clubs and allied employees' union-is a trade union of which the civilian staff employed at the petitioner-home are members. the writ petition challenges an award dated 27th april, 1981 made by the industrial tribunal at bombay under which the tribunal has held that the petitioner is an 'industry' as defined under s. 2(j) of the industrial disputes act, 1947 and has also held that the government of maharashtra is the appropriate government entitled to make the reference in question in the exercise of its powers under s. 10 of the industrial disputes act, 1947.2. standing orders relating to indian navy sailors' home regulate the organisation and functioning of the petitioner-home. the indian navy sailors'.....
Judgment:

1. The petitioner is Indian Navy Sailors' Home. The 1st Respondent-Bombay Gymkhana Clubs and Allied Employees' Union-is a trade union of which the civilian staff employed at the petitioner-Home are members. The writ petition challenges an Award dated 27th April, 1981 made by the Industrial Tribunal at Bombay under which the Tribunal has held that the petitioner is an 'industry' as defined under S. 2(j) of the Industrial Disputes Act, 1947 and has also held that the Government of Maharashtra is the appropriate Government entitled to make the reference in question in the exercise of its powers under S. 10 of the Industrial Disputes Act, 1947.

2. Standing Orders relating to Indian Navy Sailors' Home regulate the organisation and functioning of the petitioner-Home. The Indian Navy Sailors' Home is an integral part of the total Naval Organisation and is designed to provide facilities and amenities which cannot be provided in Naval Ships and Establishments due to lack of space and exigencies of service. It is a successor to the old Cornwallis Fleet Canteen. Under the Standing Orders relating to Indian Navy Sailors' Home, the Flag Officer Commanding-in-Chief, Western Naval Command shall be the Patron of the Indian Navy Sailors' Home. The overall control of the Home rests with the Management Council. All serving Indian Naval Personnel as set out in the Standing Orders below a certain level are eligible for membership. In addition, sailors of visiting foreign Naval Ships and foreign Naval Sailors attached to Indian Navy can also be given the privilege of honorary membership for the duration of their stay. The Sailors' Home has facility for Lodging. It has Cafeteria, Bar, Indoor Games, Reading Room, etc. The family members of Members can be entertained in the Sailor's Home as guests. Army and Air Force Personnel can also be so entertained. In matters of discipline, the Regulations of Indian Navy extend to the Sailors' Home. The salaries of the staff are paid by the Indian Navy. The facilities of the Soilors' Home are, therefore, available to sailors of the Indian Navy and their guests. The Sailors' Home is, therefore, attached to and forms part of the Indian Naval Establishment. It is not run as a commercial establishment but is meant to provide facilities to the sailors of the Indian Navy and is established and controlled by the Navy.

3. The first question is whether the Indian Navy Sailors' Home can be considered as an 'industry' under S. 2(j) of Industrial Disputes Act, 1947. S. 2(j) defines 'industry' as 'any systematic activity carried on by co-operation between an employer and his workmen.... for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes are merely spiritual or religious in nature), whether or not, (i) any capital has been invested for the purpose of carrying on such activity; or (ii) such activity is carried on with a motive to make any gain or profit.....'. The definition of 'industry' was considered by the Supreme Court in the case of Bangalore Water Supply v. A. Rajappa : (1978)ILLJ349SC . The Supreme Court has held that the definition of 'industry' as defined in S. 2(j) has a wide import. It says : 'What the common man does not consider as 'industry' need not necessarily stand excluded from the statutory concept.' Every aspect of activity which can be said to be analogous to the carrying on of trade or business would be covered by the definition. Even profit motive is not essential for an industry. It is stated that the true focus of the definition is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations. Where there is systematic activity, organised by co-operation between employer and employees, for the production and/or distribution of goods and services calculated to satisfy human wants and wishes, there is an 'industry' in that enterprise. In consequence, clubs, educational institutions, co-operatives, charitable projects and other similar enterprises, if they fulfil the above tests cannot be exempted from the scope of S. 2(j) in view of the wide amplitude of the construction given to the provisions of S. 2(j). In these circumstances, the Indian Navy Sailors' Home is covered by the definition of 'industry' under S. 2(j) of the Industrial Disputes Act, 1947.

4. My attention was drawn to a decision of the Division Bench of this Court in the case Indian Sailors' Home Society v. R. D. Tulpule : (1974)IILLJ227Bom where a Division Bench of this Court held that the Indian Sailors' Home Society was not an 'industry' within the meaning of S. 2(j) of the Industrial Disputes Act, 1947. This decision, however, was given prior to the decision of the Supreme Court in Bangalore Water Supply case. In view of the observations of the Supreme Court in that case Bangalore Water Supply case, which are binding on me, the decision of the Division Bench of this Court is no longer good law.

5. The next question that arises is whether the Government of Maharashtra is the appropriate Government for making a reference under S. 10 of the Industrial Disputes Act, 1947. Under S. 10 where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing, refer the dispute to various authorities as set out in that section. The 'appropriate Government' is defined under S. 2(a) of the Industrial Disputes Act, 1947. Under S. 2(a), 'appropriate Government' means : (i) in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government... ... the Central Government; and (ii) in relation to any other industrial dispute, the State Government.' The definition of 'appropriate Government' under S. 2(a)(i) also enumerates various corporations regarding whom also the 'appropriate Government' is the Central Government. These authorities include inter alia, a Dock Labour Board, the International Airports Authority of India, Air India Corporation, the Life Insurance Corporation of India, the Oil and Natural Gas Commission and several other authorities which are statutory Corporations set up by the Central Government. We are concerned with the first part of the definition, namely whether the Indian Navy Sailors' Home can be considered as an 'industry' carried on by or under the authority of the Central Government. The Standing Orders relating to Indian Navy Sailors' Home show that the Indian Navy Sailors' Home is an integral part of the total Naval Organisation of the country and is designed to provide facilities and amenities which cannot be provided in Naval Ships and Establishments on account of lack of space and exigencies of service. The Respondent-Union in the evidence which was led before the Industrial Tribunal on its behalf has also accepted the position that the Indian Navy Sailors' Home is a part of the organisation of the Indian Navy and is managed by the officers of the Indian Navy. The overall control over the management of this Indian Navy Sailors' Home is also with the Indian Navy. The Indian Navy Sailors' Home does not charge any membership fee to the sailors and it provides certain amenities at concessional or subsidised rates. The Indian Navy Sailors' Home does not have funds of its own. Looking to all these factors, the Indian Navy Sailors' Home must be considered as a Home which is run by or under the authority of the Indian Navy, which is a part of the Defence Establishment of the Central Government. It must, therefore, be considered as an 'industry' carried on by or under the authority of the Central Government as specified in S. 2(a)(i) of the Industrial Disputes Act, 1947.

6. It was submitted on behalf of the 1st respondent that the Indian Navy Sailors' Home, when it was started, received contributions from several States and other organizations. Thus the States of Maharashtra, Punjab, Tamil Nadu, Gujarat, Haryana, Mysore and Andhra Pradesh contributed various sums of money when the said Home was set up. Several private and public organisations also contributed certain amounts. It was, therefore, urged that the said Home cannot be considered as an organisation set up under the authority of the Central Government. There is no substance in this submission at all. It is an undisputed fact that the Indian Navy Sailors' Home is an integral part of the Naval Establishment. The very fact that several States made contributions ranging from Rs. 10 thousand to Rs. 1 lac, when it was set up would indicate that it was an organisation set up on an All India basis for the benefit of sailors. The amenities provided by this organisation are available to all sailors of the Indian Navy. Hence it is an organisation which is carrying on its activities under the control and authority of the Defence Establishment of the Central Government.

7. In this connections a reference may be made to a decision of the Supreme Court in the case of Regional Provident Fund Commissioner, Karnataka v. Workmen : (1984)IILLJ503SC , where the Supreme Court has held that in respect of a dispute concerning the Office of the Regional Provident Fund Organisation established under the Provident Fund Act, the Central Government was the appropriate authority for making a reference. In the case of Goa Sampling Employees' Association v. General Superintendence Co. of India Pvt. Ltd. : (1987)IILLJ217SC , where a dispute arose in the the Union territory of Goa, Daman and Diu, the Supreme Court held that the appropriate Government was the Central Government. My attention was drawn to a decision of the Supreme Court in Heavy Engineering Mazdoor Union v. State of Bihar : (1969)IILLJ549SC . In that case Heavy Engineering Corporation Ltd. was held to be not an 'industry' carried on under the authority of the Central Government. In that case the Supreme Court observed that it was not enough that the Central Government should hold certain shares in the Corporation concerned, but it must be shown that the Corporation carried on its activities under the authority of the Central Government. A Company in-corporateunder the Companies Act had its own existence. Hence, the Supreme Court held that it was not a Company which carried on its activities under the authority of the Central Government.

8. The ratio of that decision will not apply in the present case because in the present case admittedly the activities which are carried on by the Indian Navy Sailors' Home are carried on under the authority of the Indian Naval Establishment. The management and control over the said Home is in the hands of the Navy and financial control is also in the hands of the Navy. The appropriate Government, therefore, to make a reference in respect of a dispute between the civilian employees of the Indian Navy Sailors' Home represented by Respondent No. 1 and the Indian Navy Sailors' Home is the Central Government. The residual power vested in the State Government to make a reference, therefore, cannot be exercised in the present case by the State Government.

9. Petition is, therefore, allowed. The impugned Award, Part I, dated 27th April, 1981 is set aside. Rule is made absolute accordingly.

10. There will be no order as to costs in the circumstances of the case.


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