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Maheswar Rao and ors. Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Judge
Reported in40(1974)CLT593; (1974)IILLJ127Ori
AppellantMaheswar Rao and ors.
RespondentState of Orissa and ors.
Cases ReferredAct. In Motipur Zamindari Co. v. Bihar State
Excerpt:
.....of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - he submitted a failure report as per annexure 1. the state government, in exercise of their powers under section 12(5) read with section 10(1)(b) of the industrial disputes act, 1947 (hereinafter referred to as the act) referred the following dispute for determination by the industrial tribunal by their order dated 13-6-72 (annexure 3): whether the existing wage rates for the heavy vehicle drivers, tractor drivers, cleaners, mechanics, conductors, and checkers employed in the vehicles of the following employers need..........government, in exercise of their powers under section 12(5) read with section 10(1)(b) of the industrial disputes act, 1947 (hereinafter referred to as the act) referred the following dispute for determination by the industrial tribunal by their order dated 13-6-72 (annexure 3):whether the existing wage rates for the heavy vehicle drivers, tractor drivers, cleaners, mechanics, conductors, and checkers employed in the vehicles of the following employers need any revision. if so, what should be the details and from which date the revised rates of wages in respect of the said workmen should be given effect ?in the order of reference thereafter followed a list, under annexure 'b', of 63 employers with the particulars of their vehicles noted against each of them. the two other questions.....
Judgment:

R.N. Misra, J.

1. The Rayagada Motor Employees' Union represented by its secretary (opposite party No. 3) raised a dispute which was conciliated by the District Labour Officer, Rayagada. He submitted a failure report as per annexure 1. The State Government, in exercise of their powers under Section 12(5) read with Section 10(1)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) referred the following dispute for determination by the Industrial Tribunal by their order dated 13-6-72 (annexure 3):

Whether the existing wage rates for the heavy vehicle drivers, tractor drivers, cleaners, mechanics, conductors, and checkers employed in the vehicles of the following employers need any revision. If so, what should be the details and from which date the revised rates of wages in respect of the said workmen should be given effect ?

In the order of reference thereafter followed a list, under annexure 'B', of 63 employers with the particulars of their vehicles noted against each of them. The two other questions that were referred are:

(2) Whether the above-said workmen are entitled to payment of bonus If so, what should be the quantum of payment ?

(3) Whether the above-said workmen are entitled to house rent allowance, medical aid, and whether they should be supplied with dress and shoes If so, what are the details ?

This reference is assailed before us at the instance of four of the persons shown under annexure-B to the order of reference as perverse, an act without application of mind and also as being without jurisdiction. The petitioners contend that what has been referred is not an industrial dispute.

2. The petitioner No. 1 is an advocate by profession and is the owner of a private car bearing Registration No. A.P.W. 2500 (serial No. 39 of annexure-B). The petitioners Nos. 2 to 4 (serial Nos. 50, 52 and 57 respectively of annexure-B) are agriculturists by occupation and own tractors for their private purposes. Their stand is that they do not carry on any industry and the employees under them are private employees not in any industry and, therefore, demand, if any, of such employees does not constitute an industrial dispute. The Industrial Disputes Act (14 of 1947) has, therefore, no application in respect of any dispute arising out of their demands for higher wages or better conditions of service. As the Act has no application, the reference is without jurisdiction,

3. 'Industrial dispute' has been defined under Section 2(k) of the Act to mean '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'. Section 2(j) defines 'industry' to mean ''any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen'. It is conceded that unless the employer is an industry within the definition of the Act there would be no scope for exercise of jurisdiction under the Act.

4. This Court in Harihar v. State of Orissa : AIR1966Ori35 , laid down the test of an industry under Section 2(j) of the Act to be,

The two essential requirements to constitute an industry within the meaning of Section 2(j) of the Industrial Disputes Act are : (1) that there should be an organised operation, as in business or trade, in which capital and labour co-operate, and (2) that such operation should be for the satisfaction of material human wants or desires.

Before the work engaged in, can be described as industry, it must bear the definite character of trade or business or manufacture or calling or must be capable of being described as an undertaking resulting in material goods or material services, see S. J. Hospital. New Delhi v. K.S. Sethi : (1970)IILLJ266SC . It has also been settled that for determining whether an organisation is an industry or nor, it must be ascertained as to whether its activity partakes the nature of a business or trade or is an undertaking or manufacture or calling of employers. It it is that and there is co-operation of the employer and the employee resulting in the production of material services, it is an industry, see F.I.C. Commerce v. R.C. Mittal A.I.R. 1964 S.C. 763. In Harinagar (one Farm v. State of Bihar : (1963)ILLJ692SC , the learned Judges observed that agricultural operations carried on by a company may fall, in special circumstances, within the meaning of 'industry' in Section 2(j) of the Act. In Motipur Zamindari Co. v. Bihar State : (1960)ILLJ634Pat , it has been observed that agricultural operations carried on by a limited company formed for that purpose constitute an industry. From these decisions it would appear that unless agriculture is adopted as a business or calling, the operations in the hands of the petitioners 2, 3 and 4 cannot partake the character of industry. Similarly the petitioner No. 1 who is an advocate by profession cannot be said to be carrying on an industry. The Supreme Court has already categorically said that the calling of solicitors is not an industry. The allegations in support of these facts raised in the writ application have not at all been denied in the counter, affidavit filed on behalf of the opposite party No. 3. The referring authority (opposite party No. 1) has made no return to the Rule nisi from this Court. It would, therefore, follow that the petitioners do not run any industry and any dispute in regard to employment under them would not constitute 'industrial dispute ' within the definition of that term under the Industrial Disputes Act. The referring authority without application of mind and without examining the facts of the case suddenly proceeded to make the reference in exercise of powers vested in it under the Act. Exercise of such jurisdiction is manifestly erroneous and the combined order of reference must stand annulled. The petitioner's writ application is allowed with costs to be paid by the opposite party No. 1 alone. Hearing fee Rs. 100 (one hundred).

B.K. Ray, J.

5. I agree.


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