A.P. Srivastava, J.
1. This is a petition under Article 226 of the Constitution and the circumstances which have led up to it are briefly these. The petitioner is a District Co-operative Bank at Gorakhpur. Respondents 3, 4 and 5 were its employees. According to the petitioner, respondent 3 was an accountant and manager while the other two respondents 4 and 5 were temporary servants. There being some charges against respondent 3, he was suspended pending enquiry into those charges. The services of respondents 4 and 5 were terminated. There is at Gorakpur a union known as the Uttar Pradesh bank employees' union. It took up the dispute which had arisen between the petitioner and respondents 3, 4 and 5 in connexion with their employment and grot it referred to the regional conciliation officer for conciliation. The attempt at conciliation did not fructify. Under Section 4K of the Uttar Pradesh Industrial Disputes Act, therefore, a reference was made in respect of that dispute to the labour court at Gorakhpur which was presided over by one Khanna. The Court issued notice to the petitioner requiring it to appear on 2 January 1960 for filing written statement and other documents. On that date, an application signed by the petitioner's managing director was presented praying for adjournment. The adjournment was Opposed on behalf of the union but the labour court granted four days adjournment on payment of Rs. 50 as cost. The case was thus adjourned to 6 January 1960. On that date, an application signed by the managing director A.P. Vermah was presented to the labour court by one A.K. Maulik who claimed to be an officer of the petitioner. A question was raised as to whether Maulik was an authorized representative of the petitioner. Respondents 3 to 5 said that they did not recognize him. The petitioner's case is that when this situation arose, the labour court directed Maulik to go back and get a written authority. He went back but before he could come back, an application was made by the representative of the union praying that no postponement should be granted. This application was allowed and ex parte order was passed. When, therefore, S.K. Sinha, the accountant of the petitioner, came to the Court with the written authority of the managing director, he found that it had already been ordered that the case was to proceed ex parte. On 15 January 1960, the petitioner filed an application supported by an affidavit for the setting aside of the ex parte order and the restoration of the case. It may be noted that by that time the case had not been decided and the award had not been made. This application for restoration and the setting aside of the ex parte order was again opposed on behalf of the union and was disposed of by the labour court by an order which reads like this:
I have heard parties and discussed each point of employer's application. I find no substance and reject the application for restoration.
2. This order was written on the back of the objection which the representative of the union filed against the application for restoration. This writ petition was then filed with the prayer that the orders of the labour court, dated 6 January 1960 and 15 January 1960, be quashed and that a mandamus be issued directing the labour court to consider the application of the petitioner for the restoration of the case. On 28 January 1960, the labour court made an award in the case which was published in the Gazette on 27 February 1960. The writ petition was thereupon amended and grounds were added challenging the validity of the order of reference, dated 11 December 1959 and the award, dated 28 January 1960. The prayer in the petition was also amended and both the reference and the award were also sought to be quashed by a writ of certiorari.
3. The petition is opposed on behalf of the respondents on the ground that the entire proceedings before the labour court were valid and the ex parte order as well as the order refusing the restoration of the case were justified. It is also urged that the reference and the award cannot be questioned on any valid grounds.
4. Three main contentions have been pressed on behalf of the petitioner in support of the petition. They are:
(1) That the petitioner being a co-operative bank could not be held to be carrying on any industry and a dispute between it and the respondents 3, 4 and 8 was, therefore, not an industrial dispute which could be referred to a labour court it was also urged in this connexion that respondent 3 was not a workman and in any case as he had only been suspended, no dispute relating to his employment can be said to have arisen between the petitioner and him.
(2) That the order of the labour court that the case should proceed ex parte and the subsequent order refusing to restore the case were liable to be quashed as they had been passed without the labour court's applying its mind to the relevant questions involved.
(3) That if the restoration had been wrongly refused, the subsequent award was bad and in any case even if the refusal of restoration was correct, the award cannot be upheld because it was not based on any evidence. It is pointed oat in this connexion that the only evidence that was before the labour court consisted of three affidavits filed by respondents 3, 4 and 5, but as they were not properly sworn, they could not be treated as affidavits.
5. The third ground appears to have some force, but unfortunately for the petitioner the point sought to be urged does not appear to have been raised in the petition. The only grounds to which reference has been made in this connexion are grounds (vii) and (xvi). They read as follows:
(vii) Because an award must contain reasons and findings and the relief given on the consideration of material before the labour court.
(xii) Because in any case, the award was based on affidavit whose copy was never supplied to the petitioner or time given to meet it.
In neither of these grounds is it contended that the affidavits sworn were not properly sworn and were liable to be kept out of consideration on that account. This is the main argument that is being put forward now. There were no less than seventeen grounds taken in the amended petition but when this point was not included in any of them, I do not think it should be allowed to be raised for the first time at the present stage.
6. The first ground appears to be clearly untenable. The word 'industry' has been defined in Section 2(k) of the Uttar Pradesh Industrial Disputes Act, 1947, as meaning:
Any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workman.
The definition of the word 'industry' has been considered by the Supreme Court in a number of recent cases. Reference may be made in this connexion to D.N. Banerji v. P.R. Mukherfee and Ors. 1953--I L.L.J. 195, Baroda Borough Municipality v. Its workmen and Ors. 1957--I L.L.J. 8, State of Bombay and Ors. v. Hospital Masdoor Sabha and Ors. 1960--I L.L.J. 261, Corporation of the City of Nagpur v. Its employees 1960--I L.L.J. 623 and Lalit Hari Ayurvedic College Pharmacy, Pilibhit v. Its workers' union 1960--I L.L.J. 250.
The meaning given by their lordships to the word is fairly wide. I do not think it is necessary to repeat the discussion about the meaning contained in these decisions. The meaning given to the word appears to be wide enough to include the case of the petitioner which is a bank carrying on banking business. Learned Counsel for the petitioner, however, urged that the petitioner was a co-operative bank and that made a difference. I am, however, unable to see any difference on that account. The petitioner is certainly a co-operative bank and it is possible that it may be doing business only with its members but it cannot be denied that it does business, that it earns profits and that it distributes dividends among its members. Having employed other persons it is an employer and if an employer does business, it must be deemed to be an industry for the purposes of the Industrial Disputes Act. The Act does not make any exception in favour of cooperative banks. Under Clause (1) of Section 2 of the Act an exception has been made in favour of a banking company as defined in the Central Industrial Disputes Act, 1947, but the petitioner is not a banking company of that kind.
7. I am also not impressed by the argument that the dispute relating to the suspension of respondent 3 is not a dispute relating to his employment. He has been relieved of his duties and is being given only a subsistence allowance and not his whole salary. He questions the validity of his suspension. A dispute in connexion with his employment must, therefore, be held to have arisen.
8. The argument that respondent 3 was not a workman is based on the ground that he works in a managerial capacity. Reference is made in this connexion to exception III to the definition of workmen given in Clause (z) of Section 2 of the Uttar Pradesh Industrial Disputes Act. On behalf of the respondents, it is denied that respondent 3 had any managerial capacity. In any case it is a disputed question of fact as to whether he is employed mainly in managerial capacity or not. According to the petitioner's own case, he is employed as an accountant as well as a' manager. It is not possible to go into disputed questions of fact in summary proceedings like the present.
9. The grounds on which the reference to the labour court 18 being challenged thus appears to be untenable. We must, therefore, proceed on the basis that there was an industrial dispute between the petitioner and respondents 3 to 5 and that there was a valid reference in respect of it to the labour court.
10. From the circumstances in which the orders of the labour court that the case should proceed ex parte and that it should not be restored were passed, it appears to me that at least the latter order was passed without the labour court's applying its mind to the questions which ought to have been considered in that connexion. It is necessary to bear in mind that the first date fixed was 2 January 1960. On that date, an application for adjournment was made which was signed by the managing director of the petitioner. The ground for adjournment was that the managing director was suffering from diarrhoea and dysentery and was on that account unable to attend the Court. The adjournment was opposed but the labour court allowed a very short adjournment of only four days on payment of Rs. 50 as cost to the union which was opposing the application. The cost was paid immediately and the case stood adjourned to 6 January 1930. On that date, an application again signed by the managing director was presented to the labour court. In that application it was said that a copy of the allegations of the plaint had not been given to the petitioner and that a copy was necessary in order to prepare a proper reply to the allegations made. It was, therefore, prayed that a copy be ordered to be given to the petitioner and two days' time be given for filing a reply and producing the necessary evidence. A long adjournment was thus not being prayed for. No party would have been prejudiced if the case had been postponed for two more days. The application was, however, opposed first on the ground that Maulik who had brought the application was not an authorized representative of the petitioner. He was not going to argue the case or to represent the petitioner in the dispute. He had only brought the application signed by the managing director as a messenger and had put it before the labour court. There was, therefore, no question of his being armed with any written authority. Learned Counsel has not been able to bring to my notice any rule framed under the industrial Disputes Act which requires a written authority for a messenger to present an application like the one which Maulik had presented. Learned Counsel for the respondents referred to Rule 16 of the Labour Court (Gorakhpur) Rules, 1957. That rule does not appear to apply to such a messenger at all. It only applies to a person who wants to represent one of the parties to the case before the labour court. Maulik was not claiming any such right to represent the petitioner. From the affidavit filed on behalf of the petitioner, however, It appears that the labour court insisted on a written authority being filed before he could consider the application for adjournment. Maulik, therefore, returned to his office to arrange for a written authority. Before anyone could come back with a written authority, an application had been filed on behalf of the union in which it was prayed that the case should not be postponed any further. The ground put forward was that the employers were deliberately delaying the matter and their earlier conduct had been emphasized. Without waiting for a duly authorized representative, this application was allowed by an order of two words:
The result was that when S.K. Sinha, another employee of the petitioner, came back with a written authority, he found that the case had already been directed to proceed ex parte. Nothing could be done at that time but on 15 January 1960, an application supported by an affidavit was filed praying that the ex parte order be set aside. Notice in respect of the application was directed to be served on the other party which filed an objection. The objection was not supported by any affidavit. In that objection again the main reason urged was that the employers wanted to delay the proceedings. Under rule 16 of the Uttar Pradesh Industrial Disputes Rules, 1957, the question to which the labour court should have addressed itself while dealing with the petitioner's application for restoration was whether there was sufficient cause for the absence of the petitioner at the time when the earlier ex parte order had been passed.
The application for restoration could not nave been rejected without recording a definite finding that no sufficient cause in that respect bad been shown. From the order passed in connexion with the application for restoration on 15 January 1960, however, it appears that the labour court did not apply its mind to that question at all. In the order it is certainly mentioned that each point of the employer's application has been discussed but there is no mention as to with whom the discussion has been made. The discussion is not to be found in the order itself. The real reason why the petitioner was absent when the ex parte order was passed was that Maullk had gone back to get a written authority. The labour court did not consider this reason at all and did not record any finding as to whether it was sufficient or insufficient. In these circumstances, it appears to me that the order refusing restoration was really based on extraneous considerations, mainly provided by the objections raised on behalf of the union, and the real questions involved were not considered at all. On this ground, I think the order refusing the restoration is liable to be quashed.
11. If the order refusing the restoration is bad and liable to be quashed, the subsequent award must share a similar fate and cannot be upheld.
12. The result is that the petition succeeds to this extent that though the reference made by the State Government to the labour court must be held to be valid, the order of the labour court refusing to set aside the ex parte order it passed in the case and all the subsequent proceedings, including the award, are quashed. The case must go back to the labour court for being re-heard from the stage when the application for restoration made by the petitioner was filed. It is ordered accordingly. The petitioner will get his costs from respondent 2. I hope the case will be heard by the labour court at an early date.